HomeMy WebLinkAboutMiscellaneous - Exception (69)MPG Realty Trust file in chronological order. ( Today's date: 2/26/2001.)
2/24/98 & Petition Published in Eagle -Tribune twice.
3/3/98 prior to March 10, 1998 public hearing.
3/10/98 Hearing of petition: 006-98
Town Clerk stamp: March 18, 10:40 AM' 98
Voted to allow the applicant to withdraw without prejudice
(copy of application Feb. 12, 1:04 PM'98).
3/10/98 Letter from PD Associates, LLC to withdraw without prejudice.
3/31/98 & Petition published in Eagle -Tribune twice prior to April 14, 1998 public hearing.
4/7/98
4/10/98 Letter from Atty. Michael Gerstein, Phillips, Gerstein, Holber & Channen, with copy of
the memorandum in support of applicant's request for a variance.
4/14/98 Hearing of petition: 010-98
Town Clerk stamp: April 21, 12:01 PM'98
Voted to deny the variance
(copy of application dated 3/13/98).
4/21/98 Planning Board approval of Special Permit Repetitive Petition.
4/23/98 Planning Board approved Watershed Special Permit
4/27/98 & Petition published in Eagle -Tribune twice prior to May 11, 1998 public hearing.
5/4/98
5/11/98 & Hearing of petition: 011
7/13/98
5/26/98 & Petition published in Eagle -Tribune twice prior to June 9, 1998 public hearing.
6/2/98
5/29/98 Letter from Walter F. Soule, Vice Chairman, Zoning Board of Appeals to Atty. Joel Bard
of Kopelman & Paige.
6/3/98 Letter from PD Associates, LLC to North Andover Planning Board to withdraw the
repetitive hearing application without prejudice with Planning Board decision attached,
Town Clerk stamp: June 3, 4:27 PM'98.
6/9/98 Letter from Atty. Joel Bard in response to Walter F. Soule on "Repetitive Petitions".
6/9/98 Request for 2 month extension until August 1998 meeting.
4/5/99 Correspondence between Planning & Zoning Boards Rowan & Vivenzio.
0
I
4/26/99 Correspondence between ZBA Secretary and Atty. Urbelis land court misc. no. 247838.
(ZBA).
4/27/99 & Petition published in Eagle -Tribune twice prior to May 11, 1999 public hearing.
5/4/99
4/27/99 Atty. Urbelis correspondence to Robert Ford (ZBA) "Repetitive Petition of MPG"
5/11/99 & Hearing of petition: 011-99, Town Clerk stamp: July 20, 3:03 PM'99, voted to
7/13/99 grant the repetitive petition.
5/13/99 & Correspondence from Maria Dowd suit v. ZBA & Court dismissal.
7/12/99
6/22/99 Letter from PD Associates LLC. on request for repetitive partition & variance.
MI/MPGrealty
February 26, 2001
The variance was GRANTED on the Repetitive Petition #011-99, dated July 20, 1999. Available
department records indicate that the petitioner has not recorded the Variance in the Northern Essex Registry
of Deeds.
Pursuant to Chapter 40A, Section 10 and the North Andover Zoning By-law Section 10.4 (2) (a) " If the
rights authorized by the Variance are not exercised in one (1) year of the date of grant, they shall lapse and
may be re-established only after notice and a new hearing" I am of the opinion that the Variance lapsed
for not having been recorded or exercised within the one (1) year time frame. Application was not made to
the Zoning Board of Appeals to extend the time for exercise of such rights for a period not to exceed six (6)
months, pursuant to the Rules and Regulations of the North Andover Zoning By-law, Chapter 40A, Section
10; and the North Andover Zoning By-law.
i
Post -it® Fax Note 1 A-
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Phone # /T
Phone #
I, Received by Town Clerk: Fax# Fax#
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TOWN OF NORTH;ANDOVER, MASSACHUSETTS _.
BOARD OF APPEALS
APPLICATION FOR RELIEF FROM THE ZONING ORDINANCE
Applicant MPG Realty Corporation Address 11 Old Boston Road
Tewksbury, MA 01876 Tel. No. 978-851-9395
1. Application is hereby made:
a) For a variance from the requirements of Section 4
Paragraphl36.3(d) (ii) and Table 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. Planning Board
the applicability of Section 4.136(d)(ii)
2. a) Premises affected are land and building(s)
numbered Street.
b) Premises affected are property with frontage on the
North (x) South ( ) East ( ) West ( ) side of Dale Street
Street.
Street, and known as No. Map 37B Lot #1 Dale
Street.
c) Premises affected are in Zoning District R-1 , and the
Premises affected have an area of 1,305,493 scruare feet
and frontage of 50' & 186' feet.
S of 8
s
3. Ownership:
a) Name and address of owner (if joint ownership, give all
names) :
Iff
R. Ashton & Gwendolyn C. Smith, C/O Trustee Geoffrey Smith
15 Driftwood Drive, North Bradford, CT 06471
Date of Purchase 3-25-60 Previous Owner
1. If applicant is not owner, check his/her interest
in the premises:
X Prospective Purchaser Lessee Other
2. Letter of authorization for Variance/Special Permit
required.
4. Size of proposed building: N/A front; feet deep;
Height stories; feet.
a) Approximate date of erection: N/A
b) Occupancy or use of each floor: N/A
c) Type of construction: N/A
5. Has there been a previous appeal, under zoning, on these
premises? No If so, when?
6. Description of relief sought on this petition From planning board request
and/or approval to construct roadway with required details within 751conservation
7. Deed recorded in the Registry of Deeds in Book 912 Page
See attach,
Land Court Certificate No. Book Page 188
letters.,
The principal points upon which I base my application are as
follows: (must be stated in detail)
(1) Property has 2 existing access points, both of which are within close proximity
to urisdictional wetlands. No other reasonable means are available. and --t o h'
applicant feels the applicability of this 4.136(d)(ii is quest ione , p anning
board has requested we seek this relief.
I agree t^ pay the filing°`fee, advertising in newspaper, and
incident- = exr;enses*
Rev U'�.'_.:,
Signature of Petitioner(s)
Mi . M:7
F
DESCRIPTION OF VARIANCE REQUESTED
ZONING DISTRICT: Residential (R-1) -
Recuired Setback
or Area
N/A
Lot Dimension
Area
Street Frontage
N/A
Front Setback
N/A
Side Setback(s)
Rear Setback
N/A
N/A
Special Permit Request:
Existing Setback Relief
or Area Requested
This request is for a lot created prior to October 24, 1994. Such request
for Special Permit is further submitted pursuant to the provisions of the Watershed
Protection Bylaw, if applicable. Such applicability is questioned by the applicant,
but, is hereby submitted to adhere to a request of the planning board.
7 of 8
j [k, V S L I� 9'33
CASE #
TOWN OF NORTH ANDOVER
ZONING BOARD OF ADJUSTMENT
OWNER'S AFFIDAVIT
I, the undersigned, owner of property located at Dale Street and identified as Man 37B -
do hereby authorize MPG Realty Corporation and its representatives
11 Old Boston Road Tewksbu MA 01876
to make the following request with respect to the above-described property: Any and all requests
for the approval of Berrington Place an 8 Lot subdivision with roadways and all improvements as
shown on plans by Allen & Major Associates Inc of Woburn MA as may be required
bathe Watershed Protection Bylaw and the Planning Board. Please refer to Special Permit
application and accompanying documentation for submittal of this request for ZBA consideration.
R. Ashton & Gwendolyn C. Smith
Signature w rustee Geoffrey Smith
15 Driftwood Dr. North Bradford CT 06471
Address
January 23 1998
Date
nazba.doc
Z5
Town of North Andover
�' �''` { ` OFFICE OF
ITY DEVELOPMENT AND SERVICES
146 Main Street
FE$ I 04; p# North Andover, Massachusetts 01845
o
. o
REQUIREMENTS AND DIRECTIONS OF THE ZONING BOARD OF APPEALS
FOR FILING APPLICATION FOR THE FOLLOWING•
VARIANCES AND SPECIAL.PERMITS
PARTY AGGRIEVED
1. Every application for action by the Board shall be made on a
form approved by the Board. These forms shall be furnished by the
Administrative Secretary 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.
2. Original and ten (10) copies of the application with a
certified abutters list from the Assessors office.
(Certified abutters list must accompany application.)
3. Ten (10) copies of the site plan, and one mylar. The mylar
shall be stamped by a Registered Land Surveyor or a
Professional Engineer (with discipline). The signature
box shall have five lines for signatures. The mylar and
decision are to be recorded with the Registry of Deeds after
signed approval from the Zoning Board of Appeals. A copy of
recording will accompany any building permit application
according to M.G.L. Chapter 409, Section 14.
4. The fee 'for publishing the legal notice will be paid for by
the petitioner when he/she delivers the legal notice to
the newspaper. The legal notice shall be published twice,
one week apart in the local newspaper.
5. A copy of the legal notice must be sent to all abutters, by
Zoning Board of Appeals Secretary, via certified mail return
receipt requested at least 7 days prior to the public hearing.
The petitioner will be responsible and billed for postage
incurred for mailing of the legal notice and the decision. The
Zoning Board of Appeals Secretary will also mail the Notice
of Decision to the Abutters and the Petitioner.
1 of 8
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Received by Town Clerk:
TOWN OF NORTH ANDOVER, MASSACHUSETTS
BOARD OF APPEALS
APPLICATION FOR RELIEF FROM THE ZONING ORDINANCE
Applicant MPG Realty Corporation Address 11 Old Boston Road
Tewksbury, MA 01876 Tel. No. X78-851-9395
1. Application is hereby made:
a) For a variance from the requirements of Section 4
Paragraph136.3(d) (ii) and Table 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. Planning Board
the applicability of Section 4.136(d)(ii)
2. a) Premises affected are land and building(s)
numbered Street.
b) Premises affected are property with frontage on the
North (X) South ( ) East ( ) West ( ) side of Dale Street
Street.
Street, and known as No. Map 37B Lot #1 Dale
Street.
c) Premises affected are in Zoning District R-1 , and the
premises affected have an area of 1,305,493 square feet
and frontage of 50, & 186, feet.
5 of 8
Rc'i . 13 . 96
G
3. Ownership:
a) Name and address of owner (if joint ownership, give all
names) :
R. Ashton & Gwendolyn C. Smith, C/O Trustee Geoffrey Smith
15 Driftwood Drive, North Bradford, CT 06471
Date of Purchase 3-25-60 Previous Owner
b) 1. If applicant is not owner, check his/her interest
in the premises:
X Prospective Purchaser Lessee Other
2. Letter of authorization for Variance/Special Permit
required.
4. Size of proposed building: N/A front; feet deep;
Height stories; feet.
a) Approximate date of erection: N/A
b) Occupancy or use of each floor: N/A
c) Type of construction: N/A
S. Has there been a previous appeal, under zoning, on these
premises? No If so, when?
6. Description of relief sought on this petition From planning board request
and/or aroval to construct roadway with required details within 'conservation
7. Deed recorded in the Registry of Deeds in Book 912 Page zj0a.1See attach
Land Court Certificate No. Book Page 188 letters.)
The principal points upon which I base my application are as
follows: (must be stated in detail)
(1) Property has 2 existing access points, both of which are within close proximity
to urisdictional wetlands. No other reasonable means are available_an though' -
applicant feels the applicability of this 4 136 d ii is questioned, planning
board has requested we seek this relief.
I agree
incident
pay the
expenses*
S
Rev 06.,,_.96
filing fee, advertising in newspaper, and
ature of Petitioner(s)
DESCRIPTION OF VARIANCE REQUESTED
ZONING DISTRICT: Residential (R-1)
Required Setback Existing Setback Relief
or Area or Area Requested
N/A
Lot Dimension
Area
A
Street Frontage
N/A
Front Setback
N/A
Side Setback(s)
N/A
Rear Setback
Special Permit Request:
This request is for a lot created prior to October 24, 1994. Such request
for Special Permit is further submitted pursuant to the provisions of the Watershed
Protection Bylaw, if applicable. Such applicability is questioned by the applicant,
but, is hereby submitted to adhere to a request of the planning board.
.Ler 06.0-3.96
7 of 8
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CASE #
TOWN OF NORTH ANDOVER
ZONING BOARD OF ADJUSTMENT
OWNER'S AFFIDAVIT
I, the undersigned, owner of property located at Dale Street and identified as Map 3713 -
Lot #1. '
do hereby authorize MPG Realty. Corporation and its representatives
11 Old Boston Road Tewksbu k01876
to make the following request with respect to the above-described property: AU and all requests
for the approval of Berrington Place an 8 Lot subdivision with roadways and all improvements as
shown on plans prepared by Allen & Major Associates, Inc of Woburn MA as may be required
by the Watershed Protection Bylaw and the Planning Board Please refer to Special Permit
application and accompanying documentation for submittal of this request for ZBA consideration.
R. Ashton & Gwendolyn C. Smith
/. OC—Lll—
Signaturew rustee Geoffrey Smith
15 Driftwood Dr. North Bradford, CT 06471
Address
January 23 1998
Date
nazba.doc
Herbert P. Phillips, PC. LAW OFFICES OF
Michael A. Gerstein (111 %j'11c, 6&SkkfAOfV fir clwwn
Stuart M. Holber �' 11 u4! fl
Russell S. Channen
Jane M. Owens Triano - 25 Kenoza Avenue ■ Haverhill, MA 01830 ■ Tel. (508) 374-1131 1 Fez (508) 372-3086
Ronald N. Beauregard
Kevin P. Rauseo
Of Counsel:
John T. Pollano
July 23, 1997
William J. Scott
Director of Community Development and Services
Town of North Andover
146 Main Street
North Andover, MA 01845
Re: "Smith Property"
Dale and Appleton Streets
North Andover, Massachusetts
Dear Mr. Scott:
Please be informed this office represents MPG Realty Corp. relative to its desire to subdivide the
above property. I have received a copy of the letter of Kathleen Bradley Colwell, Town Planner,
dated April 24, 1997 relative to her position that my client would need another access point to the
property and, if not, would require a variance from the. Zoning Board of Appeals. I have had
occasion to review my client's file, the Town of North Andover Zoning Bylaws, the Wetlands
Protection Bylaw, and the Wetlands Regulations for the Town of North Andover. I have also
examined the title to the property, and I am of the belief that town counsel will concur that a
variance will not be required. I am listing herewith my reasons and would request you submit this
letter to Town counsel for his/her review and continents. It is my client's further hope and desire
to proceed with the subdivision in an expeditious manner, and I believe town counsel should be
involved to address these concerns currently.
Pursuant to the provisions of the Zoning By -Laws, and, in particular, Section 4.136 dealing with
"Watershed Protection District", it is stated under 4.136.21, "the provisions relating to the
establishment of the Conservation Zone and the enlargement of the non -disturbance zone and the
non -disturbance zones shall only apply to lots recorded and registered after the date of the
enactment of this amendment." (October 24, 1994). Please be aware that the Smith Property in
question was purchased March 25, 1960 as recorded at Book 912, Page 187 of the Essex North
District Registry of Deeds, a copy of which deed I am enclosing herewith.
It is certainly acknowledged that the North Andover Conservation Commission is empowered by
the Wetlands Protection Bylaw to preserve and protect the wetland resource auras, and to adopt
All attorneys admitted in Massachusetts.
Holber and Beauregard admitted also in New Hampshire.
Holber admitted also in Maine.
Other office: 32 Saco Avenue, P.O. Box W, Old Orchard, ME 04064 Reply to Haverhill office only
Orders of Conditions which are necessary to regulate its responsibility. The Conservation
Commission does have the authority to waive strict compliance with its regulations, when in its
judgment, such action would be consistent with the intent and purposes of the Bylaw. I certainly
acknowledge that my client, as an applicant, has the burden of proving that the grant of a waiver
is consistent with the intent and purposes of the Bylaw. I wish to further acknowledge that the
proposed subdivision and its current access points are in the non -disturbance buffer zone,
although the following uses shall be allowed within such zone only by Special Permit, issued
pursuant to Section 4 of the Watershed Protection District Bylaw:
1. Any activities which cause a change in topography or grade;
2. Vegetation removal or cutting, other than in connection with agriculture uses or
maintenance of a landscape area.
5. Any surface or subsurface discharge, including but not limited to storm water runoff,
drainage of any roadway that is maintained by the Division of Public Works or any private
association; outlets of all drainage swales; outlets of all detention ponds.
You should be aware that the current roadway that is used and would be proposed to be used to
access the property has a width of between thirty (30) and forty (40) feet. Correspondingly, the
shoulders of the roadway are thirty eight (38) to fifty (50) feet. The slopes therein are currently
eroding and partially treated, and the degradation of the adjoining or abutting wetlands are
affected during heavy rains by the sediment from the soil in the slopes. Based upon such
situation, the improvement to the roadway would greatly reduce the erosion and would serve to
better direct and treat any storm water runoff. The addition of a paved roadway, which is further
proposed as part of such subdivision, with a closed drainage system directed to a treatment swale,
would further reduce TSS counts to DEP acceptable levels.
From a further review of all documentation, I believe it is fairly clear that the Conservation
Commission is allowed to permit the construction and maintenance of a new roadway or
driveway, of minimum, legal and practicable width, acceptable to the Planning Board dimensional
standards "where no alternate means of access from an existing public or private way to an upland
area of the same ownership is available." As has been previously mentioned herein, the property
has been held in the same owner since 1950, and thus was in existence prior to the effective date
of October 24, 1994. When reviewing such matters in its entirety, and reviewing the burden of
proof requirements, whereby an applicant must prove by a preponderance of the evidence that the
work proposed in the application shall not have an unacceptable significant and/or
cumulative affect upon the wetland values protected by this Bylaw, I would contend that a
variance would not be required. Furthermore, since the access road in existence would be
acceptable as a single lot, it should not.lose its applicability and availability for subdivision
purposes.
It is important to note in reviewing the Zoning Bylaws that "the Special Permit Granting
Authority (SPGA) under this Bylaw shall be the Planning Board." Such Bylaw was clearly
intended to allow the Planning Board and not the Zoning Board of Appeals to make a
determination with regards to proposed subdivisions, and I would suggest that Town Counsel
review that in detail.
I think it useful to note, from my review of the title, that a subdivision was formerly approved by
the Planning Board in March, 1957 for the site, with the plan recorded at the Essex North District
Registry of Deeds, on April 2, 1957, listed as Plan # 3442. The access points remain the same as
proposed in the current plan, which clearly evidences the intent to use such access points as a
means of entering the property for subdivision purposes. While I must clearly acknowledge that
the Planning Board is not required to accept a new subdivision based upon one that existed a
number of years ago, I think it is important in making a determination of the use of the site that
the clear intent and purposes of such subdivision was to use the existing access points. The owner
who originally intended to proceed with the subdivision was Lantern Corporation which, I
understand, involves the Smith Family who are the current owners of the property, with the
previous subdivision formerly known as "Appleton Estates"
It is my sole intent and desire to expedite the subdivision process and allow for uses that are
clearly spelled out and allowed under the rules and regulations of the Town of North Andover.
MPG Realty Corp. is desirous of completing the plans for submittal of its Notice of Intent, and, as
well, prepare a definitive set of plans for submittal to the Planning Board, and I would appreciate
your having town counsel formulate an opinion, in light of the within submittal.
Very truly yours, '
Michael A. Gerstein
MAG/If
cc: MPG Realty Corp.
Elmer Pease
LEONARD KOPELMAN
DONALD G. PAICC
ELIZABETH A. LANE
JOYCE FRANK
JOHN W. GIORGIO
BARBARA J. GAIN? ANOIIC
JOEL B. BARO
EVERETT J. MAROER
PATRICK J. COSTELLO
JOSEPH L. TEHAN. JR
ANNE -MARIE M. HYLAND
THERESA M. DOWDY
WILLIAM NEW10 111
DEBORAH A. ELIAyON
JEANNE S. MCKNIUHr
JUDITH C. CUTLER
RICHARD BOWEN
KOPELMAN AND PAIGE, P. C.
ATTORNEYS AT LAW
31 ST. JAMES AVENUE
BOSTON. MASSACHUSETTS 02116-4102
BOSTON OFFICE
(6171 566.0007
PAS (4127) 464.8726
NORTHAMPTON OPFICE
14231 585.6632
WORCESTER OFFICE
16061 752-0203
November 21, 1997
BY FACSIMILE - (978) 588-9542
1vls. Kathleen Bradley Colwell
Town Planner
North Andover Town Hall
KATHLEEN M. O'OONNELL
DAVIO J. DONESKI
BANORA CHARTON
ILANA M OUIRK
JOHN RICHARD HUCXSAM. JR.
SUSAN M CALLAHAN
BRIAN W. RILEY
JOHN J. KENNEY. JR.
ROBERT PATTEN
MARY L 410AGIC
KATHL[CN C. CONNOLLY
MICHCLC C. RANOAZZO
PETER J. FEUERBACH
MARY JO HARRIS
THOMAS W. MCENANEY
JONATHAN M..SILVERSTEIN
TIMOTHY J. ERVIN
KATHARINE 1. GORES
CHRISTOPHER J. POLLART
Z
NOV 2 41997 !�
120 Main Street
. 'INNING a,!nQn
North Andover, MA 01845
Re: Berrington Estates Subdivision - Interpretation of Watershed
Protection District Bvlaw and related Questions
Dear Ms. Colwell:
You have requested an opinion regarding several issu--s raised by the applicant's attorney
in regard to the proposed Berrington Estates subdivision.
It is my understanding that, in particular, you seek clarification as to: 1) whether the
Watershed Protection District Bylaw (the "Bylaw") affects this proposed subdivision; 2) whether
the applicant, if required to obtain a variance, should obtain that variance From the Planning Board
or from the Zoning Board of Appeals; and 3) what role the Conservation Commission will play
with respect to this proposed subdivision prucess.
Briefly, in response to these questions, it is my opinion that: 1) the Watershed Protection
District Bylaw xvill affect any lot(s) the applicant records after October 24, 1994, the effective
date of the Byiaw; 2) if the applicant is required to obtain a variance front any part of the Zoning
Bylaw, including the Watershed Protection District Bylaw, the Zoning Board of Appeals will he
the proper authority to issue such a variance; and 3) the Conservation Commission will be
responsible for enforcing the Tuwn•s general (i.e., nun-zoning)u'etlands Bylaw and the State
Wetlands Protection Act, but not the Watershed Protection District Bylaw which will be enforced
by the Planning Board.
PRINTED ON RECYCLED PAPER
70-d zvg6 909 209 •naa -w07-Aanopuy q -a ION dI£=ZT 86-ZT-ue
KOPELMAN AND PAIGE. P.C.
Ms. Kathleen Bradley Colwell
Town Planncr
November 21, 1997
Page 2
ARnlication ot*the October. 1991 Watershed Protection District Bylaw
The facts as I understand them are as follows. The applicant seeks to subdivide a parcel
of property which lie has owned since prior to the effective date of the Watershed Protection
District Bylaw. However, before lie actually obtains subdivision approval for this property, he is
proposing to build a road into the center of it; he intends to later use this road as the access into
the subdivision. This proposed road ME undisputedly cress a non -disturbance buffer zone ass
defined in the Watershed Protection District Bylaw. He hopes that by building the road prior to
completing the subdivision process, he will avoid the Watershed Protection District Bylaw .
requirements because the road will have been built on a lot which was in existence before October
24, 1994.
In my opinion, the applicant's property will not be subject to the restrictions of the
Watershed Protection District By -lave until the applicant records or registers the property as
consisting of new lots. That is, in my opinion the Bylaw requirements only apply to those lots
recorded or registered after October 24, 1994. Since the applicant's lot was in existence before
that date, it is my opinion that it is not subject to the Bylaw. Furthermore, in my opinion, merely
proposing to subdivide: the lot does not trigger the restrictions under the Bylaw. In my opinion,
the language of the Bylaw clearly states that it is applicable only to those lots recorded and
jcListereel after October 24, 1997. Theref'ure, in my opinion, until the applicant records o
registers new lots of the subdivision, the Bylaw does not apply. As a result, whether the Bylaw
will apply or not in this particular case depends largely on how the applicant chooses to proceed.
it is possible that the applicant could complete the subdivision process, including construction of
the road, without recording any of the lots, i.e., by covenanting to secure the cottsuyuction of the
subdivision ruad, thereby avoiding the necessity of recording the lots until after construction is
complete. On the other hand, it is possible he will .record the lots prior to the completion of
construction, (after posting a bond or due to another circumstance), thereby trigacring the Bylaw
requireinents, in my opinion. In summary, it is my opinion that once the new lots arc recorded,
the Bylaw will become applicable, but work performed un the: existing, "unsubdivided" lot will not
be subject to the Bylaw.
Variance Procedure_
With respect to the second question, it is my opinion that if the applicant should Xquirc a
variance 1runl the provisions ul*the.Watershed Protection District Bylaw, he mast obtain .such a
variance tTorn the 7onin� Board of �pPeals. In a letter dated July 23, 1997, the applicant's
attorney seems to indicate lie believes the Planning nning Board would be the proper authority from
which to obtain a variance. In my opinion, this position is mistaken. While it is true that pursuant
to the Watershed Protection District Bylaw, the Placttttttg Board is cuip) vered to hear and act on
special permit requests. nothing alters the exclusive authority given to the 7.oning Board of
Appeals to hear and decide variance requests.
�:o"d Zb56 p89 SOS 'nan .wOn _4an0puy q-L.AoN dr£=ZL
KOPELMAN AND PAIGE. P.C.
Ms. Kathleen Bradley Colwell
Town Planner
November 21, 1997
Page 3
The third question appears to ask what role and authority the Conservation Commission
has with respect to processing this subdivision request. In my opinion, the Conservation
Commission will conduct a review which is separate from that of the Planning Board and Zoning
Board of Appeals. The Conservation Commission will review the applicant's plan to ensure
contpliauc:e with the Tuwn's Wetlands Bylaw and State Wetlands Protection Act The Planning
Board (and Zoning Board ofAppeals,'if necessary) will review the pian with respect to the
Watershed Protection District Bylaw and all other applicable zoning and subdivision provisions,
rules and regulations.
Should you have further questions regarding this matter, please do not hesitate to contact
me.
Very truly yours,
Joel B. Bard
JEBIKAWatg
cc: Town Manager
Board of Selectmen
3G818:nand19999
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ALTERNATIVE ACCESS REPORT
October 27, 1997
Location: 1 Dale Street, North Andover, MA
Purpose Access for a proposed 7 lot Subdivision -Berrington Place
I have been asked by the applicant, MPG Realty Corp., of 11 Old Boston Road,
Tewksbury, MA 01876 to prepare a report on the feasibility of an alternative access to the
subject property proposed as a 7 lot subdivision known as Berrington Place. This request
is pursuant to a review comment made several months ago by Ms. Kathleen Colwell, the
Planning Director of the Town of North Andover to Mr. Kenneth Grandstaff..
Prior to this report, I have previously submitted a brief to the Town of North Andover
reflecting my view that an alternative access is not necessary pursuant to state statute and
Town of North Andover regulations. Further, my brief was supported by the applicant's
attorneys from the law offices of Philips, Gerstein, Holber & Channen of 25 Kenoza
Avenue, Haverhill MA 01830. These briefs are currently in the Town's possession.
Having said that, this report will only serve to address the special requirements of the
zoning regulations Section 4.136 Watershed Protection District, Subsection 4.c.iv. "proof
that there is no reasonable alternative location outside the non -disturbance and/or non
discharged buffer zones, whichever is applicable, for any discharge, structure, or activity,
associated with the purposed proposed use to occur".
The following three properties to the northwesterly boundary of the subject parcel owned
by Johaine Realty Trust, Barbara Grasso and James Rice, are exclusive executive homes
with outside amenities such as pools and tennis courts. Along the northern boundary are
two other parcels owned by Connecticut Financial, enc. and the Town of North Andover
(town farm) in which the common boundaries are located in standing water. The Morley
property to the east of the subject site is bounded by a common wetland area as well.
The following homes along the southerly boundary to the Dale Street, Appleton
intersection, all abut the subject property, however, have wetlands that prevent access to
the subject property. These parcels are owned by Harold Morley, Richard O'Toole,
Frederick White, Michael and Virginia Bubar, Christlne Melvin, Edward and Jacqueline
Morgan, Jan and Stephanie Bajan, Agnes E. McCallister, Daniel and Joan Takesian,
Gregory E. and Kathleen Garbick and R. Ashton Smith. All of these properties are
bounded by wetlands and the accompanying watershed setbacks.
Along Dale Street to the northwest, which is a one-way street going east, is the R. Ashton
Smith and the Donald and Maria Hillner properties. These properties have single family
residential homes and have wetlands or wetland setback restrictions.
The sole property to the west of the subject site is owned by Joseph and Carol O'Connell.
Their home is located to the southeasterly portion of their property along the
southwesterly boundary of the subject parcel. Their home is in such a location as to
prevent reasonable access between the O'Connell and Hillner homes.
In addressing the Reasonable Alternative Access issue, I spoke with Mr. O'Connell and
determined that though the property was not on the market, he would be willing to sell the
parcel for an asking price of $250,000.00 dollars. This is even after he commented that
his home is only worth $125,000.00 to $150,000.00 dollars. He would not entertain a
roadway going in between his home and the Hillner home. In a discussion with Curt
Young of Wetlands Preservation, Inc. (WPI), he determined that there are wetlands along
the O'Connell left front boundary as well as in the central and northwesterly sections of
the property. This would prevent any access from further west.
In addition to the price of the property being extremely unreasonable, there are two other
more important issues that deal with any access from this location. The first issue is
access at a common point that becomes a safety hazard. The roadway location to Dale
Street would be at the end of a curve that has neither the site stopping distance (SSD) or
reasonable intersection site distance (ISD) for traffic having to enter Dale Street and turn
left. As I had mentioned before, all traffic entering on this portion of Dale Street must
turn left because of its one-way direction. The second issue is the more likely impact of a
roadway being wedged between and close to, the O'Connell and Hillner homes. This
would result in a likely decrease in their property values.
For these reasons, this property as well as any of the others abutting parcels are not
reasonable accesses to the subject parcel.
In closing, the subject site has two existing means of egress. Both were created when the
property was previously subdivided. Both access' ire remaining just that, access' to the
main portion of the property. Whether it be a driveway, private or public roadway, access
to the uplands to the northwest and central portion of the property can be gained from the
westerly access currently shown on plans submitted to theTown. Therefore, it is my
opinion that no reasonable alternative access can be gained to the property and should not
be considered in dealing with the briefs prepared by me or the applicant's attorney.
Respectfully submitted,
Elmer A. Pease, II CPM, EA
cc: Mike Gerstein, Esq.
Attachments
EAP/sp
aarnoand.doc
3
� DJK
Two Dundee Park. Suite 301
Andover. MA 01810-3725
Office: 508-474-1994
Fax: 508-474-1778
December 30, 1997
Mr. Elmer A. Pease
PD Associates, LLC
704 Londonderry Turnpike
Auburn, NH 03032
RE: Berrington Place
Dale Street
North Andover, MA
Dear Elmer:
Dermot J. Kelly Associates. Inc.
Traffic Engineering/Transportation Planning
As per your request, DJK Associates, Inc. has evaluated an alternative driveway location to the
proposed Berrington Place 7 -lot residential subdivision. The current proposed driveway location
is opposite #125 and #133 Dale Street. The alternative drive would be approximately 500 feet to
west of the current proposed driveway location.
' Adjacent to the current proposed site drive location, Dale Street is relatively tangent and level.
At the alternative driveway location, Dale Street exhibits a large radius curve, which could
1 negatively affect the available sight distance. It is generally undesirable to locate a new
intersection on a section of roadway that exhibits a large radius curve, especially when an
available tangent section of roadway exists.
Should you have any additional questions, commdnts and/or if you require any additional
information please do not hesitate to call me.
ISincerely,
DJK /Assoicates, Inc.
I, Dermot Kelly, P. E.
DJ K/a h
cc: File
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Herbert P. Phillips,. PC. LAW OFFICES OF
Michael A. Gersten //�� /�17
Stuart M. Holber (Plix j�7 , / � j (i f i, Hofer & Ch"en
Russell S. Channen t LIUiJJ NIJc�I.LI/
Jane M. Owens Triano
Ronald N. Beauregard 25 Kenoza Avenue ill Haverhill, MA 01830
E!k Kevin P Rauseo TeL (978) 374-1131 I(800) 457-6912 ■ Fax: (978) 372-3086
of Counsel.
John T. pollano
Gerald M. Lewis
October 20, 1997
William J. Scott
s Director of Community Develop;Ment and Services
146 Main Street
North Andover, MA 01845
Re: Berrington Estates Subdivision
Dale and Appleton Streets
North Andover, Massachusetts
Dear Mr. Scott:
I had previously written to you on July 23, 1997 stating the position of my client, MPG Realty
Corp., and its desire to proceed with the above referenced subdivision.
I am enclosing a further copy of such correspondence and am requesting again that Town Counsel
issue an opinion, consistent with the position I have taken, that no further access points to the
above property would be necessary.
E ..
I would be more than happy to contact Town Counsel directly, although I am requesting that you
proceed as quickly as possible to obtain such opinion so that my client can proceed in its
endeavors.
Very-trWy yours,
i Michael A. Gerstein
MAG/lf
cc: MPG Realty Corp.
Elmer Pease
Kathleen Bradley Colwell
~ All attorneys admitted in Massachusetts.
Holber, Beauregard and Rauseo admitted also in New Hampshire.
Holber admitted also in Maine.
Other office: 32 Saco Avenue, P.O. Box W, Old orchard, ME 04064 Reply to Haverhill office only
Y"
Herbert P. Phillips. PC. //�7p►� �LAAWryOFICCES OF
/�Q� C/Mwn
Michael A. Gersten T/ ('' N efs U v? / I oa�V &
Stuart M. Holber v
Russell S. Channen
Jane M. Owens Triano _ 25 Kenoza Avenue ■ Haverhill, MA 01830 ■ Tel. (508) 374-1131 ■ Fax (508) 372-3086
Ronald N. Beauregard
Kevin P. Rauseo
of Counsel:
John T. Pollano
�;
QJU23,
1997
William J. Scott
Director of Community Development and Services
Town of North Andover
146 Main Street
North Andover, MA 01845
Re: "Smith Property"
Dale and Appleton Streets
North Andover, Massachusetts
Dear Mr. Scott:
Please be informed this office represents MPG Realty Corp. relative to its desire to subdivide the
above property. I have received a copy of the letter of Kathleen Bradley Colwell, Town Planner,
dated April 24, 1997 relative to her position that my client would need another access point to the
property and, if not, would require a variance from the Zoning Board of Appeals. I have had
occasion to review my client's file, the Town of North Andover Zoning Bylaws, the Wetlands
Protection Bylaw, and the Wetlands Regulations for the Town of North Andover. I have also
examined the title to the property, and I am of the belief that town counsel will concur that a
variance will not be required. I am listing herewith my reasons and would request you submit this
letter to Town counsel for his/her review and comments. It is my client's further hope and desire
to proceed with the subdivision in an expeditious manner, and I believe town counsel should be
involved to address these concerns currently.
Pursuant to the provisions of the Zoning By Laws, and, in particular, Section 4.136 dealing with
"Watershed Protection District", it is stated.under 4.136.2.f, "the provisions relating to the _
establishment of the Conservation Zone and the enlargement of the non -disturbance zone and the
non -disturbance zones shall only apply to lots recorded and registered after the date of the
enactment of this amendment." (October 24; 1994). Please be aware that the Smith Property in
question was purchased March 25, 1960 as recorded at Book 912, Page 187 of the Essex North
District Registry of Deeds, a copy of which deed I am enclosing herewith.
It is certainly acknowledged that the North Andover Conservation Commission is empowered by
the Wetlands Protection Bylaw to preserve and protect the wetland resource areas, and to adopt
All attorneys admitted in Massachusetts. G�
Holber and Beauregard admitted also in New Hampshire.
�y Orders of Conditions which are necessary to regulate its responsibility. The Conservation
3 Commission does have the authority to waive strict compliance with its regulations, when in its
judgment, such action wduld be consistent with the intent and purposes of the Bylaw. I certainly
acknowledge that my client, as an applicant, has the burden of proving that the grant of a waiver
is consistent with the intent and purposes of the Bylaw. I wish to further acknowledge that the
proposed subdivision and its current access points are in the non -disturbance buffer zone,
although the following uses shall be allowed within such zone only by Special Permit, issued
pursuant to Section 4 of the Watershed Protection District Bylaw.
1 Any activities which cause a change in topography or grade;
2. Vegetation removal or cutting, other than in connection with agriculture uses or
maintenance of a landscape area.
5. Any surface or subsurface discharge, including but not limited to storm water runoff,
drainage of any roadway that is maintained by the Division. of Public Works or any private
association; outlets of all drainage swales; outlets of all detention ponds.
You should be aware that the current roadway that is used and would be proposed to be used to
access the property has a width of between thirty (30) and forty (40) feet. Correspondingly, the
shoulders of the roadway are thirty eight (38) to fifty (50) feet. The slopes therein are currently
eroding and partially treated, and the degradation of the adjoining or abutting wetlands are
affected during heavy rains by the sediment from the soil in the slopes. Based upon such
situation, the improvement to the roadway would greatly reduce the erosion and would serve to
better direct and treat any storm water runoff. The addition of a paved roadway, which is further
proposed as part of such subdivision, with a closed drainage system directed to a treatment Swale,
would further reduce TSS counts to DEP acceptable levels.
From a further review of all documentation, I believe it is fairly clear that the Conservation
Commission is allowed to permit the construction and maintenance of a new roadway or
driveway, of minimum, legal and practicable width, acceptable to the Planning Board dimensional
standards "where no alternate means of access from &fexisting public or private way to an upland
area of the same ownership is available." As has been previously mentioned herein, the property
has been held in the same owner since 1950, and thus was in existence prior to the effective date
of October 24, 1994. When reviewing such matters in its entirety, and reviewing the burden of
proof requirements, whereby an applicant must prove by a preponderance of the evidence that the
work proposed in the application shall not. Pave am unacceptable significant and/or
cumulative affect upon the wetland values protected by this Bylaw, I would contend that a
variance would not be required. Furthermore, since tyle access road in existence would be
acceptable as a single lot, it should not lose its applicability and availability for subdivision
purposes.
It is important to note in reviewing the Zoning Bylaws that "the Special Permit Granting
Authority (SPGR) under this Bylaw shall be the Planning Board." Such Bylaw was clearly
intended to allow the Planning Board and not -the Zoning Board of Appeals to make a
determination with regards to proposed subdivisions, and I would suggest that Town Counsel
review that in detail.
/0
I think it useful to note, from my review of the title, that a subdivision was formerly approved by
the Planning Board in March, 1957 for the site, with the plan recorded at the Essex North District
ril 2, 1957, listed as Plan # 3442. The access points remain the same as
Registry of Deeds, on A
P in the current plan, which clearly evidences the intent to use such access points as a
means of entering the property for subdivision purposes. While I must clearly acknowledge that
the Plaruuns Board is not required to accept a new subdivision based upon one that existed a
number of years ago. I think it is important in making a determination of the use of the site that
the clear intent and purposes of such subdivision was to use the existing access points. The owner
who originally intended to proceed with the subdivision was Lantern Corporation which. I
understand, involves the Smith Family who are the current owners of the property, with the
previous subdivision formerly known as "Appleton Estates"
It is my sole intent and desire to expedite the subdivision process and allow for uses that are
clearly spelled out and allowed under the rules and regulations of the Town of North Andover.
MPG Realty Corp. is desirous of completing the plans for submittal of its Notice of Intent, and, as
well, prepare a definitive set of plans for submittal to the Planning Board, and I would appreciate
your having town counsel formulate an opinion, in light of the within submittal.
cc: MPG Realty Corp.
Elmer Pease
Very truly yours,
ichael A. Gerstein
DALE STREET - COMPLIANCE BRIEF & FINDING
I have carefully reviewed the Town of North Andover's Zoning Bylaws -Reprinted
1996 and their Wetlands Protection Bylaw and Wetlands Regulations. 1 researched those
sections of the Bylaws that pertain to the Buffer Zone distances and requirements and
their interaction with our proposed development.
I reviewed several key sections that have, or could have some bearing on the
roadway that is proposed for the 7 lot residential subdivision. The following excerpts
were taken from the Bylaws and are the ones that are at the heart of this brief.
I have also included a copy of the deed to the property furnished by the attorney
who completed the title abstract. This deed shows that the property was a lot of record as
of March 25, 1960. This date, is of course, critical in the determination of whether or not
certain provisions of the Regulations and Bylaws affect this property.
After careful review of the Bylaws and Regulations, excerpted below and
highlighted, it is my opinion that the roadway we propose in its current location does not
require the submittal or finding of the Zoning Board of Appeals. Further, it is my
opinion, that the Conservation Commission has the authority and right to grant a waiver
to allow the roadway pursuant to Section I.E. Waivers From Regulations -Wetlands
Regulations, and the Planning Board to grant a Special Permit pursuant to the finding that
the property is a lot created prior to October 24, 1994 and pursuant to Section 4.136.3.c.i
and 4.136.c.ii of the Zoning Bylaws -Watershed Protection District, Town of North
Andover Zoning Bylaw -Reprinted 1996.
Pursuant to Section 4.136. Ld of the Watershed Protection District, the Special
Permit Granting Authority (SPGA) shall be the Planning Board. The Conservation
Commission has the jurisdiction and authority pursuant to Section 178.2 and 178.6 of the
Wetlands Bylaw and Section I.E of the Wetlands Regulations.
This finding supports the fact that the Planning Board and Conservation
Commission have the right and the authority to review and grant approval on this
subdivision without having to -acquire a variance from the Zoning Board of Appeals.
WETLANDS PROTECTION BYLAW
Section 178.1 Purpose. The purpose of this Bylaw is to preserve and protect
the wetland resource areas (as specified in Section 2) and buffer zones of the Town of
North Andover by regulations of, and control of, activities (more particularly described in
Section 2 below) deemed by the Conservation Commission (the "Commission") to have
significant or cumulatively detrimental effect upon the following interests and values,
including but not limited to: public or private water supply; groundwater; the prevention
and control of flooding, erosion, sedimentation, storm damage, and/or pollution;
protection of fisheries, wildlife, wildlife habitat, and recreation.
flection 178 9 Rules and Regulations. The Commission shall be empoivered to
adopt Rules and Regulations to govern its affairs, including, but not limited to, fees,
definitions, use of consultants, and such other information which it deems necessary to
discharge its responsibility. After due notice and public hearing, the Commission may
promulgate such rules and regulations to effectuate the purposes of this Bylaw, by a
majority of the duly appointed members.
WETLANDS REGULATIONS
Section I.B Purpose.The purpose of the North Andover Wetlands Protection Bylaw
(hereafter referred to as the "Bylaw") is clearly stated in the Bylaw. These Regulations
are promulgated to ensure fairness, to create a uniformity of process and to clarify and
define the provisions to the Bylaw, administered by the North Andover Conservation
Commission, hereafter call the "Commission".
Wetlands contribute to a number of public interests and are therefore protected by the
Bylaw. The Bylaw identifies three additional public interests not recognized by the Act.
These are: "prevention of erosion and sedimentation", "wildlife" and "recreation". Any
permit issued under the Bylaw and Regulations must therefore contribute to these public
interests.
Section I.E Waivers from Regulations. Strict compliance with these Regulations
may be waived when, in the judgment of the Commission, such action is consistent with
the intent and purpose of the Bylaws and these Regulations. the applicant shall have the
burden of proof that the granting of the waiver is consistent with the intent and purpose of
the Bylaws and these Regulations. The Commission shall act on the request and shall
provide to the applicant, either by certified mail or hand delivery, its written decision.
See Appendix 2 for a Waiver Request Form.
Section II Definitions.
2. The term "alter" shall include without limitation, the following actions when
undertaken in areas subject to the Bylaw:
a) changing of pre-existing drainage=eharacteristics, sedimentation patterns, flow
patterns or flood retention characteristics;
b) placement of fill, excavation or regrading;
C) destruction of plant life, including cutting and removing of trees or shrubs;
d) changing water temperature, biochemical oxygen demand or other physical or
chemical characteristics of water;
e) any activities, changes or work which pollute or cause displacement of any body
of water or groundwater;
f) any activities, changes or work which cause alteration of wildlife habitat.
13
ryt
'M 3 The term "burden of proof" means the applicant shall have the burden of proving
by a preponderance of credible evidence that the work proposed in the applicatioai shall
h .
ificant anrUor cumulative effect upon the wetland values
not have an unacceptable sign
ide adequate evidence that the work proposed in
protected by this Bylaw. Failure to prov
the application shall not have an unacceptable significant and/or cumulative effect upon
the wetland values protected by this Bylaw shall be sufficient cause for the Commission
to deny a permit or grant a permit with conditions.
Section VI Performance Standards and Supplement Documentation
A. Flood Standards.
B. Wildlife Habitat
C. Stormwater Management
D. Erosion Control
E. Wetland Replacement or Restoration
E.3. The Commission may permit the construction and maintenance of a new roadway or
driveway of minimum legal and practical width acceptable to Planning Board
Dimensional standards, where no alternative means of access from an existing public or
private way to an upland area of the same owner is available. Replication of altered
wetlands resources may be required by the Commission to minimize adverse impacts and
- to protect the interests identified in the Bylaw.
WATERSHED PROTECTION DISTRICT
Section 4.136 2.f The provisions relating to the establishment of the Conservation
Zone and the enlargement of the Non -Disturbance Zones shall only apply to lots of
recorded or registered after the date of the enactment of this amendment (October 24,
1994). (1994/1 STM).
Table 1 - Lots created after October 24, 1994
Conservation
From Annual High
Water Mark of
Lake Cochichewick
out to
From Edge of All
Wetland Resource
Areas Within the
Watershed District
out to
150'
75'
Non -
Disturbance
250'
150'
Non -
Discharge
400'
X11
l�
Table 2 - Lots created on or prior to October 24, 1994
Non -
From Annual High
Water Mark of
Lake Cochichewick
out to
From Edge of All
Wetland Resource
Areas Within the
Watershed District
out to
Non -Disturbance Buffer Zone
Disturbance
250'
100'
Non -
Discharge
325'
325'
There shall exist a Non -Disturbance Buffer Zone within the Watershed Protection District
which shall consist of all land areas located between one hundred fifty .............
i. Allowed Uses: All of the Allowed Uses listed in Section 3(a)i of this Watershed
Protection District Bylaw are allowed in the Non -Disturbance Zone except as noted
below.
ii. Uses Allowed by Special Permit: The following uses shall be allowed within the
Non -Disturbance Buffer Zone only by Special Permit issued pursuant to Section 4 of this
Watershed Protection District Bylaw.
(I) Any activities which cause a change fit topography or grade.
(2) Vegetation removal or cutting, other than in connection with agriculture
uses or maintenance of a landscape area.
(5) Any surface or sub -surface discharge, including but not limited to,
stormwater runoff; drainage of any roadway that is maintained by the Division of Public
Works or any private association; outlets of all drainage swales; outlets of all detention
ponds.
The current roadway that is used to access the property has a width of between 30-
40 feet. The shoulders of the roadway are 38-50+ feet. The slopes are currently eroding
and partially treated. The degradation of the adjoining or abutting wetlands are affected
during heavy rains by the sediment from the soil on the slopes.
The improvement to the roadway would greatly reduce the erosion, and better
channel and treat stormwater runoff. The addition of a paved roadway, with a closed
drainage system directed to a treatment Swale would reduce TSS counts to DEP
acceptable levels.
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A
• - Town of North Andover
NaRTN
OFFICE OF -
<
• �tio
COMMUNITY DEVELOPMENT AND SERVICES
F?°=,"•'
p
30 School Street
i »
North Andover, Massachusetts 01845
WILLIAM J. SCOTT
CHus t
Director
NOTICE OF DECISION
Any appeal shall be filled'
within (20) days after the
date of filling this Notice
in the Office of the Town
Clerk.
Date April 23, 1998
Date of Hearing 3/17/98,
4/7/98 & 4/21/98
Petition of MPG Realty Corporation
Premises affected Lnt 1 na1P s+-rt-4--t-
Referring to the above petition for a special permit from the
requirements of the north Andover zoning Bylaw SPc t- inn 4 1 -i6 (h) (�
Watershed Protection District
so as to allow to build a roadway, waterline and detention basins within the
non discharge, non disturbance and.conservation buffer zones.
After a public hearing given on the above date, the Planning Board
voted to APPROVE the Watershed Special Permit
based upon the following conditions:
CC: Director of Public Works
Building Inspector
Natural Resource/Land Use Planner
Health Sanitarian
Assessors
Police Chief
Fire Chief
Applicant
Engineer
Towns Outside Consultant
File
Interested Parties
Signed EL6J C_t_
Richard S.Rowen, Chairman
Alison Lescarbeau, V. Chairman
John Simons, Clerk
Richard Nardella
Joseph V. Mahoney
Planning Board
CONSERVATION - (978) 688 9530 - HEALTH - (973) 688-9540 - PLANNING - (978) 688-9535
*BUILDING OFFICE - (978) 688-9545 - *ZONING BOARD OF APPEALS - (973) 688-9541 - `146 MAIN STREET
91
Town of North Andover
OFFICE OF
COMMUNITY DEVELOPMENT AND SERVICES
WILLIAM J. SCOTT
Director
April 23, 1998
Ms. Joyce Bradshaw
Town Clerk
120 Main Street
North Andover, MA 01845
30 School Street
North Andover, Massachusetts 018.15
Re: Watershed Special Permit -Lot 1 Dale Street
Dear Ms. Bradshaw,
Of
NORTN
�
9
The North Andover Planning Board held a public hearing on Tuesday evening March 17, 1998 at
7:30 p.m. in the Department of Public Works, upon the application of Lot 1 Dale Street, North
Andover, Ma 01845 to request a special permit under Section 1.436 (3) (b) (c) (d) of the
Watershed Protection District of the North Andover Zoning Bylaw. The legal notice was
properly advertised in the North Andover Citizen on January 28 & February 4, 1998 and all
parties of interest were duly notified. The following members were present: Richard Rowen,
Chairman, Alison Lescarbeau, Vice Chairman, John Simons, Clerk, Joseph V. Mahoney and
Richard Nardella.
The petitioner was requesting a special permit to allow to construct a roadway, waterline and
detention basins within the non discharge, non disturbance and conservation buffer zones.
The premises affected is Lot 1 Dale Street in the Residential - 1 (R-1) Zoning District and the
Watershed Protection District.
Elmer Pease and Eric Heyland of Allen & Major Associates were present to represent Lot 1 Dale
Street. Mr. Pease highlighted the boundaries on the plan Mr. Pease stated that they moved the
detention basin outside of the 75' conservation zone. Ms. Colwell stated that there is deadline for
the subdivision for the April 7, 1998 meeting. Mr. Rowen stated that we can't approve the
subdivision with out the special permit. Ms. Colwell stated that we still have not received DPW's
comments. Mr. Rowen asked Ms. Colwell if they had any outstanding issues that she knows of.
Ms. Colwell stated that there were not any for the subdivision.
Kerry McCollister of 206 Dale Street, had concerns with the detention basin and culverts
discharging onto his property from the Bear Hill subdivison. An abutter of 128 Dale Street had
concerns with the excavation and the removal of the culverts.
BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535
Berrington Place
Special Permit - Watershed Protection District
The Planning Board makes the following findings regarding the application of MPG Realty
Corporation, 11 Old Boston Road, Tewksbury, MA 01876, dated February 20,1998, requesting a
Special Permit under Section 4.136 of the Zoning By -Law of the North Andover Zoning Bylaw to
allow activities which cause a change in topography and grade, vegetation removal, and surface and
subsurface discharge of storm water runoff within the Non -Disturbance Zone and surface and sub-
surface discharge of stormwater within the Non -Discharge Zone of the Watershed Protection District.
FINDINGS OF FACT:
In accordance with 4.136(4) the Planning Board makes the finding that the intent of the Bylaw, as well
as its specific criteria, are met: Specifically the Planning Board finds:
1. That as a result of the proposed construction in conjunction with other uses nearby, there will
not be any significant degradation of the quality or quantity of water in or entering Lake
Cochichewick. The Planning Board bases its findings on the following facts:
a) All of the homes will be connected to the Town sewer system;
b) storm water mitigation will catch and treat all storm water drainage;
C) the limit of clearing is restricted to the minimum necessary to construct the driveway;
d) a construction phasing plan and emergency response plan are required.
e) All of the proposed dwellings are located entirely outside of the non -disturbance zone.
2. that there is no reasonable alternative location outside the Non -Discharge Buffer Zone for any
discharge, structure or activity, associated with the proposed driveway construction as the lot
is located within the Non -Discharge Zone.
In accordance with Section 10.31 of the North Andover Zoning Bylaw, the Planning Board makes the
following findings:
A. The specific site is an appropriate -location for the proposed use as all feasible stormwater and
erosion controls have been placed on the site;
B. The use will not adversely affect the neighborhood as the lot is located in a residential zone;
C. There will be no nuisance or serious hazard to vehicles or pedestrians;
11
D. Adequate and appropriate facilities are provided for the proper operation of the proposed use;
E. The Planning Board also makes a specific finding that the use is in harmony with the general
purpose and intent of the North Andover Zoning Bylaw. .
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. The following information
is included as part of this decision:
a) Plans entitled: "Definitive Plan of Land — Berington Place", ten sheets dated January
16, 1998 List revised 3/3/98. Prepared by Allen & Major, Woburn, MA
b) Reports entitled:
i) "Statement of Environmental and Community Impact", dated January 15,
1998.
ii) "Water Quality and Best Management Practices (BMP) Evaluation",
Berrington Place, Dale Street, North Andover, Massachusetts, dated July 14.
1997, revised October 8, 1997.
C) The Town Planner shall approve any changes made to these plans. Any changes
deemed substantial by the Town Planner would require a public hearing and
modification by the Planning Board.
2. Prior to any work on site:
a) The limit of clearing line on each lot must be marked in the field with yellow caution
tape and must be reviewed and approved by the Town Planner.
b) A performance guarantee of ten thousand ($10,000) dollars in the form of a check
made out to the Town of North Andover must be posted to insure that construction
will take place in accordance with the plans and the conditions of this decision and to
ensure that the as -built plans will be submitted.
C) All erosion control measures as shown on the plan must be in place and reviewed by
the Town Planner.
d) The site shall have received all necessary permits and approvals from the North
2
Mr. Nardella asked how big the culverts are now. Mr. Pease stated that they are 12". Dave Rand
showed the Board pictures. Mr. Nardella asked what DPW's comments are. Ms. Colwell went
over DPW's concerns. Mr. Nardella asked if DPW has responded to any concerns of the
abutters. Mr. McCollister stated that he has spoken to Bill Hmurciak, and he is unaware of the
lateral culverts. Mr. McCollister stated that he doesn't understand how Xle can put the waterline
under the culverts. Mr. McCollister also stated that they were told the runoff from Bear Hill
would not be a problem, it seems to him that part of the Boards job is to protect the existing
homeowners. NIr. Rowen stated that we don't have to make the applicants solve the existing
problems. Dan Takesian of 198 Dale Street, stated that if you put up homes then the water will
have no place to go. We already have Bear Hill's water runoff. Mr. Takesian stated that their
backyards are filled with water up to their knees and with any serious rain they won't have a
backyard. Mr. Pease stated that we have already gone through all this with ConCom and have
done several tests. Mr. Pease stated that Mr. Chessia has reviewed the Storm Water Management
and we have addressed every concern they had. Mr. Pease stated that any other concerns with
Planning, there isn't anything we can do. The Beaver Pond is downstream.
Sandra Timmons of 205 Dale Street, stated that when Bear Hill was put in there was supposed to
be a dry retention area put in and now the baffle pipe is gone. Dave Rand of 280 Dale Street,
stated that he has looked for the plans for the dry retention area's for Bear Hill but, can't find
them. This would have been built for 100 year storm and if the pipe was there it would hold up
the water but, I believe a homeowner removed it. Mr. Rowen asked if a homeowner definitely
removed the pipe. Mr. Rand stated that he can't say that for sure. Mr. Rowen stated that the
applicants are required to ensure they don't create problems but they are not responsible for
curing the Bear Hill problem. Mr. Simons stated that the assumptions may not be correct because
your not taking all the potential areas to a count. Mr. Pease stated that we have answered all
these same questions. Mr. Pease stated that they have to make sure that the water drains on their
property correctly. Mr. Nardella asked Ms. Colwell if Mr. Chessia has any more comments on
this parcel. Ms. Colwell stated that there were no more comments for Storm Water Management
and these same issues were discussed at the ConCom meetings.
Dave Rand of 280 Dale Street, stated that in one weeks time the beavers put back all the dams.
Mr. Rand stated that he renewed his permit to take down 100 yards of the dam. Mr. Rand stated
that if the situation is not resolved we will be under water. Mr. Rowen stated that he understands
and if the review is correct this development is not going to have any impact on the situation. Mr.
Takesian stated that we don't have a problem with the beavers like Mr. Rand we have a problem
with the water coming onto our property. Mr. Rowen stated that we are doing the best we can.
Mr. Takesian stated that they will have a big problem with the impacts of the subdivision. Mr.
Rowen stated that he won't let this subdivision go forward if they are going to cause harm to the
abutters. Mr. Rowen stated that the applicants will not make the problem worse. Mr. Pease
stated that even the Town's Engineer stated that the problem will not get worse. Mr. Rand asked
why no one from DPW or John Chessia has come out to see this problem with Bear Hill. Mr.
Rowen suggested that they address their problems to Mr. Chessia. Ms. Colwell stated that they
should address their concerns to the Planning Department and then we will forward them to Mr.
Chessia.
Continued until April 7, 1998.
The North Andover Planning Board held a regular meeting on April 7, 1998 the following
members were present: Richard Rowen, Chairman, Alison Lescarbeau, Vice Chairman, John
Simons, Clerk, Joseph Mahoney, Richard Nardella & Alberto Angles, Associate Member.
Kathleen Bradley Colwell, Town Planner was also present.
Ms. Colwell stated that there are no remaining issues with this filing. Ms. Colwell stated that we
can't. issue a decision until 'L—BA grants them a variance.
On a motion by Mr. Nardella, seconded by Ms. Lescarbeau, the Board voted unanimously to
close the Public hearing and direct staff to draft a decision.
The North Andover Planning Board held a regular meeting on April 21, 1998. The following
members were present: Richard Rowen, Chairman, Alison Lescarbeau, Vice Chairman, Joseph
Mahoney & Alberto Angles, Associate Member: Kathleen Bradley Colwell, Town Planner was
also present.
On a motion by Mr. Angles, seconded by Mr. Mahoney, the Board voted unanimously to approve
the draft decision as amended for Lot 1 Dale Street.
Attached are the conditions.
Sincerely, _
Richard S. Rowen, Chairman
North Andover Planning Board
'P
Andover Conservation Commission, Board of Health, and the Department of Public
Works and be in compliance with the above permits and approvals.
3. Prior to Verification of the FORM U (Building Permit Issuance):
a) Prior to the verification of the FORM U for Lot 7, the applicant must propose
permanent boundary to be located along the limit clearing. The boundary may take the
form of a wall, fence, or shrubs to be approved by the Town Planner. This will provide
a permanent boundary along the 75' conservation zone on this lot.
4. Prior to verification of a Certificate of Occupancy:
a) Prior to Occupancy of Lot 7, the permanent boundary proposed in Condition 3(a)
above must be constructed.
b) No pesticides, fertilizers, or chemicals shall be used in lawn care or maintenance.
This restriction shall apply and be binding on all current and future owners, their
heirs, administrators, successors and assigns, and shall be incorporated within all
subsequent deeds to the premises.
5. Prior to release of the Performance Bond:
a) A Conservation Restriction enforceable by the Town of North Andover through its
Conservation Commission must be placed on Lot 8. The Conservation Commission
must approve the terms and conditions of this restriction.
b) The applicant shall submit a certified copy of an as -built plan that shows all
construction. including topography, sewer lines, storm water mitigation trenches and
other pertinent site features. This as -built plan shall be submitted to the Town Planner
for approval and shall be stamped by either a Registered Professional Land Surveyor or
Practicing Engineer in Massachusetts.
C) The Planning Board must by a majority vote make a finding that the site is in
conformance with the approved plan.
6. Any stockpiles of earth must be covered with a tarp and contained by hay bales and silt fence if
the piles are to remain on the site for longer than two weeks.
7. In no instance shall the applicant's proposed construction be allowed to further impact the site
than as proposed on the plan referenced in Condition # 1.
8. No open burning shall be done except as is permitted during burning season under the Fire
Department regulations.
3
9. The Contractor shall contact Dig Safe at least 72 hours prior to commencing excavation.
10. The provisions of this conditional approval shall apply to and be binding upon the applicant, it's
employees and all successors and assigns in interest or control.
11. This permit shall be deemed to have lapsed after a two -(2) year period from the date
a Qzcon which the Special Permit was granted unless substantial use or construction
has commenced.
CC. Director of Public Works
Building Inspector
Health Agent
Assessor
Conservation Administrator
Police Officer
Fire Chief
Applicant
Engineer
File
Berrington Estates - Watershed
2
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TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
RECc�'�E'
JOYCE BRAD:'t'AW
TOWN CLERK
NORTH ANDOVER
MAR 18 10 40 PM '98
Any appeal shall be Ned
within 1201 days atter the NOTICE OF DECISION
date of filing of this Notice Property: Dale St., Map 37B, Lot #1 Dale, (Berrington Place)
In the ORlce of the Town Clerk.
NAME: MPG Realty Corporation DATE: 3/11/98
ADDRESS: Dale St., Map 378, Lot #1 Dale PETITION: 006-98
North Andover, MA 01845 HEARINGS: 3/10/98
The Board of Appeals held a regular meeting on Tuesday evening, March 10, 1998, upon the application
of MPG Realty Corp., 11 Old Boston Rd., Tewksbury, MA 01876, requesting a Variance for said
premises located at Dale St., Map 37B, Lot #1, Dale, (Berrington Place) from the requirements of
section 4, Paragraph 136.3(d) (ii), within 75' of Conservation Zone within the Watershed Protection
District for construction of a roadway, in the R-1 District, of the Zoning Bylaws.
The following members were present: Walter F. Soule, Raymond Vivenzio, Scott Karpinski and
Ellen McIntyre.
The hearing was advertised in the Lawrence Tribune on 2/24/98 8 3/3/98 and all abutters were notified
by regular mail.
Upon a motion made by Raymond Vivenzio and seconded by Scott Karpinski, the Board voted to allow
the applicant to withdraw the petition without prejudice. Voting in favor. Walter F. Soule, Raymond
Vivenzio, Scott Karpinski and Ellen McIntyre.
mildecoctl
EOARD OF APP LAS
Walter F. Soule, acting Chairman
V
Town of North Andover H°RT4
��`C::�:=.:_ OFFICE OF o�,,�.o
JQ,YCER 'a it :•.
To;t�VI ITY DEVELOPMENT AND SERVICES °
p
146 Main Street
North Andover, Massachusetts 01845
FE8 I Z I' 04 4 .:
4 S'
SSACHUSEt
REQUIREMENTS AND DIRECTIONS OF THE ZONING BOARD OF APPEALS
FOR FILING APPLICATION FOR THE FOLLOWING-
VARIANCES AND SPECIAL PERMITS
PARTY AGGRIEVED
1. Every application for action by the Board shall be made on a
form approved by the Board. These forms shall be furnished by the
Administrative Secretary upon request. Any communication
purporting to be an application shall be treated ere notice of
intention to seek relief until such time as ff�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.
2. Original and ten (10) copies of the application with a
certified abutters list from the Assessors office.
(Certified abutters list must accompany application.)
3. Ten (10) copies of the site plan, and one mylar. The mylar
shall be stamped by a Registered Land Surveyor or a
Professional Engineer (with discipline). The signature
box shall have five lines for signatures. The mylar and
decision are to be recorded with the Registry of Deeds after
signed approval from the Zoning Board of Appeals. A copy of
recording will accompany any building permit application
according to M.G.L. Chapter 409, Section 14.
4. The fee for publishing the legal notice will be paid for by
the petitioner when he/she delivers the legal notice to
the newspaper. The legal notice shall be published twice,
one week apart in the local newspaper.
5. A copy of the legal notice must be sent to all abutters, by
Zoning Board of Appeals-8ecretary, via certified mail return
receipt requested at least 7 days prior to the public hearing.
The petitioner will be responsible and billed for postage
incurred for mailing of` the legal notice and the decision. The
Zoning Board of Appeals Secretary will also mail the Notice
of Decision to the Abutters and the Petitioner.
1 of 8
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Received by Town Clerk:
TOWN OF NORTH ANDOVER, MASSACHUSETTS
BOARD OF APPEALS
APPLICATION FOR RELIEF FROM THE ZONING ORDINANCE
Applicant MPG Realty Corporation Address 11 Old Boston Road
Tewksbury, MA 01876 Tel. No. 978-851-9395
1. Application is hereby made:
a) For a variance from the requirements of Section 4
Paragraphl36.3(d) (ii) and Table 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. Planning Board
the applicability of Section 4.136(d)(ii)
2. a) Premises affected are land and building(s)
numbered Street.
b) Premises affected are property with frontage on the
North (X) South ( ) East ( ) West ( ) side of Dale Street
Street.
Street, and known as No. Map 37B Lot #1 Dale
Street.
c) Premises affected are in Zoning District R-1 , and the
premises affected have an area of 1,305,493 square feet
and frontage of 50, & 186' feet.
5 of 8
3. Ownership:
a) Name and address of owner (if joint ownership, give all
names):
R. Ashton & Gwendolyn C. Smith, C/O Trustee Geoffrey Smith
15 Driftwood Drive, North Bradford, CT 06471
Date of Purchase 3-25-60 Previous Owner
b) 1. If applicant is not owner, check his/her interest
in the premises:
X Prospective Purchaser Lessee Other
2. Letter of authorization for Variance/Special Permit
required.
4. Size of proposed building: N/A front; feet deep;
Height stories; feet.
a) Approximate date of erection: N/A
b) Occupancy or use of each floor: N/A
c) Type of construction: N/A
5. Has there been a previous appeal, under zoning, on these
premises? No If so, when?
6. Description of relief sought on this petition From planning board request
and/or aroval to construct roadway with required details within'conservation
7. Deed recorded in the Registry of Deeds in Book 912 PageSee attach,
�� letters.;
Land Court Certificate No. Book Page 188
The principal points upon which I base my application are as
follows: (must be stated in detail)
(1) Property has 2 existing access points, both of which are within close proximity
applicant feels the applicability of this 4.136(d)(ii is questioned, planning
board has requested we seek this relief.
I agree t pay the filing fee, advertising in newspaper, and
incident- expenses*
Signature of Petitioner(s)
Rev US.,,_.5 �S
DESCRIPTION OF VARIANCE REQUESTED
ZONING DISTRICT: Residential (R-1)
Required Setback
or Area
N/A
Lot Dimension
Area
N/A
Street Frontage
N/A
Front Setback
N/A
Side Setback(s)
N/A
Rear Setback
Special Permit Request:
Existing Setback
or Area
Relief
Requested
This request is for a lot created prior to October 24, 1994. Such request
for Special Permit is further submitted pursuant to the provisions of the Watershed
Protection Bylaw, if applicable. Such applicability is questioned by the applicant,
but, is hereby submitted to adhere to a request of the planning board.
7 of 8
JA 3 C. i
CASE #
TOWN OF NORTH ANDOVER
ZONING BOARD OF ADJUSTMENT
OWNER'S AFFIDAVIT
I, the undersigned, owner of property located at Dale Street and identified as Map 37B -
do hereby authorize MPG Realty Coloration and its representatives
11 Old Boston Road Tewksbu MA 01876
to make the following request with respect to the above-described property: Any and all requests
for the approval of Berrington Place an 8 Lot subdivision with roadways and all improvements as
shown on plans prepared by Allen & Moor Associates Inc of WoburnMA as may be required
by the Watershed Protection Bylaw and the Planning, Board Please refer to Special Permit_
application and accompanying documentation for submittal of this request for ZBA consideration.
R. Ashton & Gwendolyn C. Smith
Signature w rustee Geoffrey. Smith
15 Driftwood Dr. North Bradford, CT 06471
Address
January 23 1998
Date
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03/10/1998 11.41 6036419862
PD Assoctatcs, C
Real Estate Co"sultants
704 Londondarry Turnpike, Auburn,
lVl� 03032
March 10, 1998
Zoning Board of ,Appeals
Town of North Andover
146 Main Street
North Andover, MA 01845
PD ASSOCIATES � ° '� ` P GE 01
RE: Application for Variance -Dale Street -Map 3713-Lrot#1
Via .Facsimile: 1-978-688-9556
Dew Mr. Chairman:
7'etephone #.-(603)641-8200
Facsimile #:(605)641-8882
IFMAR77
1 01998
[J �i app S
Pursuant to our meeting on the 25"' of "February along with Kathleen Bradley Colwell and
Kenneth Grandstaff, we took the opportunity to review the application with our attorney
based on comments that were raised.
Considering the importance of this issue and ensuring that the language on our
application is clear, our attorney Feels that a new application is appropriate. We feel that
a clear interpretation of the Bylaw is critical. We want to make sure that there is no
confusion of our request by either the board or any abutters.
Therefore, the applicant hereby requests that our current application be withdrawn
without prejudice, This will allow us to refile a new application with the language
recommended in our meeting and approved by our attorney.
Respectfully submitted,
:;�V
mer A. Pease, It CPM, EA
Owner's Representative
cc: Michael Gerstein, Esq.
Kenneth Grandstaff
Kathleen Bradley Colwell
rmzbewthd.doc
03/10/98 11:39 TX/RX N0.8275 P.001
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,SS'OCHU`�E�
NORTH - AN DOY E R
TOWN OF NORTH ANDOVER APR 12 of N rJ�
MASSACHUSETTS -
BOARD OF APPEALS
Any appeal shall be filed
date of filing of this Notice
within 1201 days after the NOTICE OF DECISION
in the Office of the Town Clerk. Property: Dale St., Map 37B, Lot #1, (Berrington Place)
NAME: MPG Realty Corp. DATE. 4/15/98
ADDRESS: 11 Old Boston Rd. PETITION: 010-98
Tewksbury, MA 01876 HEARING: 4/14/98
The Board of Appeals held a regular meeting on'Tuesday evening, April 14, 1998, upon the application
of MPG Realty Corp., 11 Old Boston Rd., Tewksbury, MA 01876, requesting a Variance for said
premises located at Dale St., Map 37B, Lot #1, (Berrington Place), North Andover, MA from the
requirements of Section 4, paragraphs 136.2 (b) & (iv); 136.2 (f); 136.3 (d), of Table 1&2 to build a
roadway with all required details within the 75' conservation zone, in R-1 Zoning District,
The following members were present: Walter F. Soule, Raymond Vivenzio, Scott Karpinski, Ellen
McIntyre and George Earley,
The hearing was advertised in the Lawrence Tribune on 3/31/98 & 4/7/98, and all abutters were notified
by regular mail.
Upon a motion made by Walter Soule, who removed himself as acting chairman for this vote, and
seconded by George Earley, the Board voted to deny a Variance seeking relief from Section 4, P. 136.2
(b) & (iv); 136.2 (f); 136.3 (d), to build a roadway with all required details within the 75' conservation
zone, on the basis that the petitioner failed to show substantial hardship, financial or otherwise, relating
to unique soil conditions, relating to shape, or topography of land, as required under Chapter 40A,
Section 10 of the General Laws and Section 10.4 of the Zoning Bylaws. Voting in favor of the denial:
Walter F Soule, Raymond Vivenzio, Scott Karpinski, Ellen McIntyre, George Earley.
/decoct2
ATTEST
A True Copy
BOARD OF APPEALS
Raymond V enzio, acting Chairman
-Walter Soule, Zoning Board of Appeals
PUBLIC HEARING
Patricia S. Fernandez
72 Russett Lane
Attorney Susan Craighead was present to represent the petitioner, she presented a
copy of an overview explaining the request for a variance and a special permit (for the
record) . Raymond Vivenzio read the legal notice. The primary issue is that the
addition of a library and storage area will have to meet the current requirements
regarding setbacks. The relief requested of a side setback and street frontage is
because this is the only spot for the addition as the septic is on the other side of the
house. Walter Soule asked if anyone was present in favor, no one was present.
Walter Soule asked if anyone was present in opposition, no one was present. The
Board discussed the variance requirements, and the special permit request and agreed
to vote. Upon a motion made by Scott Karpinski, and seconded by Raymond Vivenzio,
the Board of Appeals voted to grant a variance requested from the requirements of
Section 7, paragraph 7.2 & 7.3 for relief of 25' street frontage, and side setback of 3'
and to grant a special permit as requested to add an addition of a library and storage
area, to an existing non -conforming lot. Voting in favor: WFS/RV/EM/SK/GE.
PUBLIC HEARING:
Sprint Spectrum L.P.
Boston Hill
® The petitioner was not heard as there were not enough Board members present to take
a vote tonight. Atty. Scalise and the Board agreed to continue this petition until next
month.
PUBLIC HEARING:
MPG Realty Corp.
Dale St., Map 37B, Lot #1.
Raymond Vivenzio said that hearing this petition tonight could be a problem as he will
not be present next month should this become a continuance. Walter Soule explained
this to the petitioner, as this could run over tonight. The petitioner decided to proceed
tonight.
Raymond Vivenzio read the legal notice. Atty. Michael Gerstein was present to
represent the petitioner, MPG Realty Corp. This is a request for a variance to develop
a roadway within the 75' Conservation zone, so as to eventually build an 8 lot
residential subdivision. This originally started with the Conservation Commission
when an order of condition was received, and went to the Planning Board where the
public meeting has been closed. The question is whether there is an issue of
applicability for the ZBA to even make or render a decision because he is dealing with
an access to build a roadway within the 75' conservation zone. Under Section 4.136 2
if it applies to lots recorded and registered after Oct. 24, 1994. Atty. Gerstein stated,
there is a question as to whether the ZBA would have to rule on this because he is
dealing with a lot that has 2 existing driveways, one of which provides access to the lot.
5
r If a variance would be requested then it would become a ZBA matter, but because the
lots in question were created prior to the effective date of the law, that it may not be
applicable, he is here to represent the applicant, also the owner is here to represent
the Smith family, and this land has been in the Smith family since March of 1960.
There are 2 existing driveways with culverts, one is currently used to. provide access to
this property, in 1957 there was an approval of a sub -division using these exact same
access points. This is a request to use these access points, there is no'other
reasonable use or reasonable access points to this property. The hardship would
occur because of the shape of the lot and the access points as they are, this would
constitute the hardship.
Elmer Pease, a Consultant, presented in favor of this petition. Mr. Pease indicated what
areas (color coded) were within the Conservation Zone, and he indicated the areas he
is dealing with tonight and where the water line complies with the special permit
provision under 4.136, 1,1. He pointed out the beaver pond, and the Town Farm land,
and where the wetlands are located. He referenced where the vehicle traffic would
take place. Walter Soule asked where the water would run off over the property?
Elmer Pease pointed out where the wet lands were and where the culverts were.
Walter Soule questioned where the water ends, relative to the watershed line, in
reference to the bylaws. Mr. Pease pointed out that he is asking for a variance to use
the property through one of the two access points that currently now exist. There are
wetlands all around the area, and most of the homes fall within the 75' conservation
• zone as pointed out on the map.
Jeffrey Smith spoke, he is the guardian of his mother Mrs. Gwendlyn Smith, (submitted
a letter for the record), stating that he is in favor of the variance being granted to MPG
Realty, his mother's estate would benefit from the funds received by the transaction
from Mrs. Smith to MPG Realty as it would help pay for her care as she has a
debilitating illness.
Kerry McCollister, 206 Dale St., is an abutter and was present to speak regarding the
beaver lake situation. Kerry said the beaver lake problem has evolved over the last 10
years and he has been delegated to manage the lake as the problem has been put in
his hands. He is here to speak as to whether the sub -division will make matters worse
relative to the beaver lake problem-_ He wants to control the lake as he feels it is a
major concern for the entire community. He is in favor of the sub -division.
Dave Rand, 280 Dale St., spoke next, he lives on the back side of the beaver lake, and
he is the only person eligible to touch the lake. He has worked to get a permit to do so,
and the beavers are encroaching on the surrounding property. Every morning he takes
out 5 beaver dams and every night they are put back. He has a permit in his hand and
if anyone disturbs a wetland there is a $25,000.00 fine. Since the request for the
variance, he has learned that the dry retention areas on the bottom of Bear Hill do not
9
•
ork, and he feels that someone has tampered with them. There is a septic system
located there where the water from Bear Hill flows into, he is not in favor of granting a
variance to put in a roadway. He has a set of plans for dry retention area on Bear Hill
and every drop of water from Bear Hill runs into Dave Rands backyard.
Raymond Vivenzio asked why he said someone tampered with the wetlands, it might be
a sample of bad engineering? Mr. Rand said that he has informed all of the Boards in
Town of this problem. A letter from Ms. Shelly Shuman, 130 Marbleridge Rd. an
abutter, was submitted to the Board on her behalf as she was unable to attend the
meeting. She is in opposition to the variance for MPG Realty as she now finds she has
water in her cellar, and she feels it is because of this she doesn't want anyone to build
in the area and tamper with the topography of the land.
Raymond Vivenzio read a letter from Kopelman and Paige to Kathleen Bradley Colwell
regarding Berrington sub -division, relative to Watershed, Conservation Committee,
(letter for record).
Timothy Ippolito, intern Architect, with Ben Nutter Associates, was present to represent
Maria Dowd who is an abutter, 128 Dale St. His concern is the request of the roadway
being built adjacent of Ms. Dowd's property, if a retaining wall will be built by MPG, will
this cause a natural depression where the water could drain onto Ms. Dowd's property?
How much will the amount of fill be done on the site and how it will effect Ms. Dowd's
property? How will this effect lateral displacement on any of the water that is continually
rising?. There is a drainage issue because of the beaver problem. The issue of fill and
snow plowing forming sediment in a culvert located on Ms. Dowd's property needs to
be addressed and who will be responsible for the snow removal from her property put
there by the snow plow removal from the roadway. Walter Soule asked if Mr. Ippolito
presented this to the Planning Board yet, Mr. Ippolito had not at this time. Raymond
Vivenzio suggested that it would be beneficial to get some/any input available from the
DPW.
The issue was raised by Walter Soule to the petitioner that they should think about
whether they would be in the mood for a continuation for 2 months, he asked them to
think about the question because some of the Board may not be here next month, and
they could be hard pressed to bring in a decision next month because of this.
Elmer Pease spoke regarding the beaver problem and Bear Hill run off issue and that
this issue came up in front of the Planning Board this week. The Planning Board thru
letters of the Engineer that they hired themselves, along with the storm water
management practices that they are required to follow, and approved by the
Conservation Commission, thru order or conditions, have been addressed. Mr. Pease
addressed these concerns as the DPW was notified regarding Bear Hill. The Planning
Board doesn't want to render their decision until they are sure MPG has a non -
applicability issue or a variance from the ZBA. The issue regarding applicability and
does the roadway approval fall before 1994 or after 1994, is still an issue that needs to
0
at it is
pe addressed tonight. Mr. Pease said that after the Board deter slsue'th hardship is
apP
licable, and finds that a variance is granted, he said that the i
apparent.
Vivenzio raised the question why MPG didn't come to the ZBA first, before
Raymond applicability issue at that
� gin, Mr. Pease said it was an aPP licable, he is not
going to the Planning Board A9 access issue is app
time. Mr. Pease personally feels that the roadway
asking for it to be a'`lot", therefore he feels it falls under the
part of9his?equest is to
disturbance zone setback and not the 75 Conserva falls under the pre -19Q4, or the post -1 994? He is
.,
legally decide if the access (roadway) Board and he is trying to accommodate
here tonight on behalf of the Planning Pease that it
d . Walter Soule and Raymond Vivenzio informed
arguments either to hes
everybody. petitioner to present to the ZBA ..
incumbent upon the p applicable than what are his
applicability, or non -applicability, and then if it is
arguments in respect to a variance and where is the hardship
and
because of the driveway in
It is MPG's opinion that this is not applicable
question
because of the clear meaning of the provisions. the beaver
There was more discussion between the abutterand tKapasdregarding
Inhasanappeal into the
problem and that Mr. Rand advised the Board that
State regarding the problem.
not be enough ZBA Board members present to
Raymond Vivenzio said that there may quo prejudice
Because of this Scott
make a decision by next month in order to form a q
Karpinski asked if MPG would like to withdraw without members
e be stpresent next month to
another application next month as this would allow the mem
Board discussed that
vote as they as
would be counted as newly voting members . The
d not know how they
they were not ready to vote on a decision this evening, is argument relative to wanted
felt regarding this petition tonight. After wrapping P
" abilit requesting a variance, the representative for MPG Realty said they
applicability
a decision made tonight.
Walter Soule
asked the representative for MPG Realty what hat the application ard to
say tonight regarding a decision. The representatTable 11, is not applicable. Waiter
submitted for a variance request under o4.136 draw without prejudice? FS has the
FS
Soule had 2 questions, 1. Why don't y
authority, not to make a motion, but to pass the gavel to the Vice Chairman,
will make the motion.....
deci
to
The representative from MPG conferred with his collea9 2 t f Tabae 1Napples, yes or
tonight. He is asking tonight if the Board will rule of 4.13
no.
IQ
Mr. Ippolito said that the applicability issue does apply as this is a lot in its entirety and
the lot line as shown on the property on 128 Dale St. are different than the map for the
deed.
Pursuant to this, upon a motion made by Walter Soule who removed himself as acting
chairman for this vote, and seconded by George Earley, the Board voted to deny a
variance seeking relief from Section 4, P. 136.2 (b) & (iv), 136.2 (f); 136.3 .(d), to build a
roadway with all required details within the 75' conservation zone, on the basis that the
w substantial hardship, financial otherwise, relating to unique
petitioner failed to sho
soil conditions, relating to sha e, ort o ra h of land as required under lam Cha ter in
40A 0 of the General La
favor of the denial, WFS/RV/SK/EM/GE.
Upon a motion made by Raymond Vivenzio and seconded by Ellen McIntyre, the Board
voted to adjourn the meeting at approximately 11:10PM.
ml/aprilmtg
0
f hORTI� ,
O A
CHUSEt
TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
Notice is hereby given that the Board of Appeals will hold a public hearing at the
Steven's Memorial Library, 345 Main St., North Andover, MA on Tuesday the 14th
day of April 1998, at 7:30 PM to all parties interested in the appeal of MPG Realty
Corp., 11 Old Boston Rd., Tewksbury, MA requesting a Variance for said premises
located at Dale St., Map 3713, Lot #1, (Berrington Place) from the requirements of
Section 4, Paragraphs 136.2 (b) & (iv); 136.2 (f); 136.3'(d), of Table 1 & 2, to build a
roadway with all required details within the 75' conservation zone, of the Zoning
Bylaws.
Said premises is property with frontage on the North side of Dale St., which is in the
R-1 Zoning District.
Plans are available for review at the Office of the Building Dept., Town Hall, '120 Main
Street, Monday through Thursday, from the hours of 9:AM to I: PM.
By Order of the Board of Appeals,
William J. Sullivan, Chairman
Published in the Eagle Tribune on 3/31%98 & 4/7/98
/legalnov/2
JOYCE RRAO�IHAW
TOWN CLERK
NORTH ANDOVER
Received by Town Clerk: HAR 18 1,9 30 fim
TOWN OF NORTH ANDOVER, MASSACHUSETTS
BOARD OF APPEALS
APPLICATION FOR RELIEF FROM THE ZONING ORDINANCE
Applicant MPG Realty Corporation Address 11 Old Boston Road
Tewksbury, MA 01876 Tel. No. 978-851-9395
1. Application is hereby made:
a) For a variance from the requirements of Section 4
Paragraph136.2 b ( iv)and Table 1 & 2 of the Zoning Bylaws.
136.3 d
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 Street.
RE
..Premises affected are property with frontage on the
North (x) South ( ) East ( ) 'west ( ) side of Dale Street
Street.
Street, and known as No. Map 37B, Lot #1, Dale
Street.
c) Premises affected are in Zoning District R-1 , and the
premises affected have an area of 1,305,493 square feet
and frontage of 50' & feet.
6 rT +/-)
n...- nC n7 nI-
3. Ownership:
a) Name and address of owner (if joint ownership, give all
names) :
R. Ashton & Gwendolyn C. Smith, C/0 Trustee Geoffrey Smith
5 Driftwood Drive, North Bradford, CT
Date of Purchase 3-25-1960 Previous OwnerLantern Corporation
b) 1. If applicant is not owner, check his/her interest
in the premises:
X Prospective Purchaser Lessee Other
2. Letter of authorization for Variance/Special Permit
required. -
4. Size of proposed building: N/A front; feet deep; -
Height stories; feet.
a) Approximate date of erection: N/A
b) Occupancy or use of each floor: N/A
c) Type of construction:
N/A
5. Has there been a previous appeal, -under zoning, on these
premises? No If so, when?
6. Description of relief sought on t4is petition To build a roadway -with all
required details within the 75 conservation zone, if app ica e. ee 36.2(f)
7. Deed recorded in the Registry of Deeds in Book 912 Page 187 NO 1&2
Land Court Certificate No. Book Page
The principal points upon which I base my application are as
follows: ( ust. be stated n. detail).
(1) Property has existing access driveways with culverts, one is currently being used as
(2) moth access,
drivewav locations are in close aroximity to jurisdictional wetlands
(3) No other reasonable means of access are available
�4� X11 Dale St. lots ab in this site have drivewa s that fall within the conservation
Gran in relief would allow access to ro rt not of e ya la 1e. setbacks.
�ppl1 art feels that elle }s not ecpess �p rs ant to �. lt� Table 2.
agree to p y t e i ing ee, a ert1si.ng in newspaper, and
incidental eenses*
i4r?ature of Petitioner (s)
6 of 8
Rav na n-) oc
DESCRIPTION OF VARIANCE REQUESTED
ZONING DISTRICT: R-1 ( Residential
Required Setback
or Area
N/A
Lot Dimension
Area
N/A
Street Frontage
N/A
Front Setback
N/A
Side Setback (s)
Rear Setback
N/A
N/A
Special Permit Request: N/A
Rev 06.03.9ti
Existing Setback
or Area
7 of 8
Relief
Requested
�r1L _tri,1,tr.:aIE1 48 -HOLE TEL :1-Su8-372-3086
Ml au 1 11 5 C) CI
L1..l:I'LR-, rVU'URAJ 1 wN
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ecorporationduty tcatlight-iw.lcrthcltwsof CommonweaLtr of D!ussachuaeLL<
J'
lavin • lu ur°sl lair of butl+,tss rt
( y.. 6 P lreaiitf;l.ua
r Msuar.uselta. I- a:nsidetatiuu paid,
Middlesex C.;,,, t)•
gram to Ashton Smith and ;wendaler. f;. Srltith, husband ar,d +.ifc As
d 1 "envnce Ity the Ent i.tV t'_Y
of North AndUVer, I.snex County, ).AtBAChunettF, WAll outidatm toornru'I
't
tlsi(AM,, Iwo certAin norcels of land situated 2if I)nle SCreet in
said ocrtlt An,lover, bounded and cieAcffbcd as :o11,Ow.
NAL E.I. NV. 1 ricgintiint; AL the Northwc.atarly corner of: lar,A new
or foracrly AlUncr, being chows, as Lot too. 17 A olr'FLan cf
Appleton 6sLatea, :isle Street. North ..riduver, t:ass. owner, Lantern,
Corp., Lnglncer, Ralph D. drasaCur, ':arch 27, 1952" t.nid plan
being recorded its, tltC'North District of: I.aaex hegistry ,,! i,t:cda as
Plau NO. 5442; thence running Northerly by a stone wall nu<I l.lhd
of Cadogan seven hundred forty-Ifour and ,w/ICJ feet a:orc air• less to
an iron pipe at: land of Leland As shu.,n on &Fitt f,Lan; L'ietice, runnint..
kasterly by a Auone wall formirte. the NorLiterly boune..Ary of I.et Nu- 20
on said plan and by a ditch forming the Nort:4erl.y boundary of Lots
?t Ao. 21 and 22 on said Plan Olenoe Ce!itinuing by land of eaid he land
az shawn on "f lar, of Land in North Anr,loverl tiara• o„++cd by usn!tl
E. Hogan Jr., 'Tela-anry 29, 19':6•' recorded 7;, the iiorti+ U{r.lricC of
besox ftogistry of Dec -da As rlan iso. 3200 A total dirtnnce of 2,025
feet -more or less. to the 2ortwr c: it atone wall at Iii -i nr itubcrt.
"Y tlfllef an shown on caid In -it ItatlQd plan; titenec 1•urt+in-, And ntnnint;•
;iuutlterLy and by said land of Aller in Unr. by a stonewall., t:L•rno
hundred ninety-ohe and 46,/ILK: Jett to ocher l,�nd air Itobc.rt i,liiler
• as shown on caid Lnal' hanted elan; thence rut,ning LJcaterly by U,c
Nurt.lcrL7 L)oundsry of land of ltobcrt I.illoi I'hi:ic Miller, White.
and Uin,llield A& showli on .eaid lnat n.In:cd i,lan, i.ve ttandred eiLhty
and V1/lOU feet to a Ot'une wull ac lanri of is&nL+,+rr1 on said plan;
taencc Curlli.tl;; acid runnin.' Northt•Yly by t,ie Acune t:nll t,nd load of
Sprit)orn, one hundred L'wctt.;y-ni.ne and'.uJ1,.J I:cet ti,z hartacuutcrl�
c„tact of said Sanborn larva, nc *Mown on sail pLu1,; c,,eucc. turn in:
slid runni.nZ Wettcrly by the t+or'ket•ly I,uunrlr.ry air L,rid of Nalibat-n"and
Peters as sho:m on said elan, tau hundred ci.5nty three feet. tc an
f.ron pLpe at tine Nortl'+cs:crly corner �: Liu,:: W.
Acid :stare; L,K•ncc
rafniltIj. And runn.in;; ,southerly :;y the deatOriy line of: said t,itert. :u1.•i
AS; sttuvnt an plan recorded N.:. 3442 referred to aoovc, it distance. of
four litilltred Llilrty-itine aril /1QLJ fat, 1.,, )i,l: olrcet ub arae.&, un
&A1.c Lae: na:aed plan; titin;:c ruta'iiiq, AL•out .Jer.ts; ly i,y F stone waLLL
And nal.r >trccu ss showlt or, aai.d l:.al :.tn,:ed plan :r. i,;vc:nl coi.rsee
measuring forty -Seven u,ut :4/l;ii Beet, fifty at,!! V;/1.x, feet,
thirty i,ix Slid Su/1UU Beet rind fifty t'ec1_ Tf6 VECttt,Cly to .. "Llllc
bound mer shoat crit said pLan; L,irr,ct; Cu;ttinl and r,,r.nftt in a genera:
Norrhorly direction I.y t:!tc. curve of a hre".,su8 r'uAd as shove air. 6A0,1
.Jlnr. lit two coucsea, nivosurint twenty -sig an,, L )!lex' feet 6v1: .ru•ec
hundt•cA :'slid'/ slid Oo/LL•1 feet to e stcnc found 3r. CIi i'nrtl,cest^r',
corner of land of Andret)zu as &horn on baiit i N> named plan; 1:1�,•ItCc.
turtAn, and rune nr, ,leat.erly by ti -e i.orthcrly oC lend of
Andrehen, I'irkham and Yosa flu•^c htinQred ar,i. f.:. C
r' y -uric fent Lo tan,t
.
of eaid grantee mrt•kcA C.A. follith on asi;l Mutt; L`terice ,vrnin ; and
rennin;. Northurly by land of seid >_rFntee nin;-c;-f;vt: 1,c: wore
I or leve to the Nortnettatcrly corner of said A. Snits ;end; :hence,
a.,,. %;urttin;: and ruunin!i 1(catcrly by land aL !;m( .I, ;- shc—.. o:, sAid plan
Lwo :,undred elytity-eight and /L..0 J.et cc a p.;luc; tl,orcc. to;'„flit;
and runnin;; in a Southwesterly directit,ri'Uy a curve aavin;.n radius
o: t:Wc•t Ilundrad aeventy flet, it dig;Lance+Lwo hundrec eighty -t o
onG 't2; lUu feet t,; a (X111 i+l"lc its a a tune wall a: nate ,z. ee t as
h!, shown on said plan; ttialtice turning and rutinin; Nc•thwtatcrly t7
a atone wall and.Dsle StreetcS'hly-five feet marc 1r less L:, c atone
bound 1n the 3outhca&turly Corner of Lu: b;,, 17 A as S."n: or, said
',)lea; tien.ce in a �enersi Not•tho,teterLv elirevcio:i by 1:i< `'outhensLerly
t boundury of Lot 17 A in L•!trse courses mt:i,huctY.F Lhirty-une anti 42/1W
feet., ninety-four ,a'tei ..S/1L.0 fuel and one nuncrc•d 1, Ir- two And
c :5/lLU Ccct t„ thc Nvrthe.atcrly corner of 8u1A Lot. 1'A as shouts ate
=-LL_IF•::,t:ER3TEIN08H0L-B Tz—L:1—Si;r— 7= :Ux� (°:.;a-1 1� =' I1 fd_t.t;[)�i p `lz
u:
a..:••
said flan; tartrate turning and running horthvl:al(!rly Dy Lot 17 A
,it
aaJd 1}14311 three htalrlrcd six and 49/lUU feet to the point of beginning
r� ?
roncaining 50 acres Torr.• or leas,
PARCEL IIf Being shomi as Lot 14.). lei un tae Saut4erly aide of Dale tree.
n said North Andover cit P"", entitled "Pian of Land in North
Andover tt Mass. owned by unniel. L IloRan Jr. '-ebrua- r 9, 1956. ; id
pLan beillir recorded in said rel(1st'ry as Plan flu. }2v6, aalds
premised
s
;; mand
heinora oarticularly bonded adescribed as itrllowel
�.
1 .^' 1I'•.;
NV.(THEAST-RI•Y two hundred fifty fact more or lees by rf.1e Stt'CCtI
30UT1fI:ASTLF.LY
,�
one I%undred sixty eight feet !ao-e or Lces by Lot
N- . 1.5 on said plat, and
^]<
SOW rti!lE;SrUtLY two hun:tred twenty two feet mora or less by lent) how
or tvrancrly N(v England Power Company nes Shown on
said 1114211.
j
Cotlteining Z1,5Ju aglaare feet morecr leas according to said plan,
being part of the pretaif:ss conveyed to the ::rar,tur Corporattuu
by decd of Uaniel e.. i,ogau Jr, et six dated Aprii lo, 19501 recorded
•i
in &aid 1(cgistrp, doah j31 !'ane
Said preaaiaes are conveyed subject to a•taking by the L•esex
Cuunty Coicodaiiuners for tare rclocstivll of I;Ale Street, recorded in
8a:d Aegictry, Jook '92, e'a�te 435, Li «c far as Che same affects LhV
I,
within described preaaises,
f
idcaning and inLetlding, and,l�rcuy conYCVitsg to the grantees of
all the Land ir, North Andover ,Iv. standing o_` record in the name oi'
j
Lantern Corilarati..n whether or nct the .n••c is included uittlir, tela
boundaries t.f the above dcacribed yurccia.
"
.i
Said prttoisess are oonveycd .object to the tsxea ft•r the current
year 1+hidll rhe j;l'aalle(5b hercirf aha Uale trlld agree to "Ay.
'••
?h<• yzantcr c.fiYporation ne)rwlth conveys to the said groritre: an y
and ull riraht, danajr.s
C
y
I
to t,Ijj!:h I ma) as a )f,•SJlI of t.hi• 7a11an
referred to abcve_.
U. S. Pcaf•rnl Rcv,cr:nrl SInmpa
111 Fnttl r.f S--J:.,l
af.l ::xc.I .. i,l l:: n.. a•I:tll o.a 1'saa . ... ..••, (: ,•�_. .. u,l .Ivy
;.,Str J...l'"i
ht Hlilltrag ni4waf, ole axle Lp.""}:i:i1 �(iN!'(iltlt'JtN
.•!
has caused its o Wyle aeal to be here:; a.'Exod and these preacc:. u be airned, acknowledged and
i
CelirneJi.esn�meandLthalltY Guort.r H. Matheaon, Jr.
�.
lreaaurer
ru Presf cient and, hereto du�y •uthorteed, ll:la t.ves,ty-f r•f.th
�..
`'• _
1
Jay of Harsh Isa the year une tbo,--d n(nt hundred and sixty
:
Slrn.d •.d .eaje4 In prelcoee of :.1 :.•c
t
I.�11IL,'tt: L:IiE(1'J�,i,l'=(NJ
`I
f�rtsfdent e� !7'eascr r
p
vr4r Onlnrunnwitui;q of 1{9aaaurhnsrila
F
Eaxex 15 `l., -ch 25, 191,0
}
r.
I
Tt`en ptraoualiy anrcaal 6,e �uu�c rur,;C Ccurge 7i, Methcr.ult, ?resident s Treaeut
�'+c •t'FTowtavlied the icregolrt u.5t r:u:um v. Le J+c (r;r act and Jee•i of 9fi i.A:: i £fU. COR.YUELI': I(d7
?�.
Ii
Cnnrcce
r....... .._tctu'rcr 22,
a'
^(,]:Cured ilAr. at ;'.r,
•b
LEONARD KOPELMAN
DONALD G. PAIGE
ELIZABETH A. LANE
JOYCE FRANK
JOHN W. GIORGIO
BARBARA J. SAINT ANDRE
JOEL B. BARD
EVERETT J. MARDER
PATRICK J. COSTELLO
JOSEPH L. TEHAN. JR
ANNE -MARIE M. HYLAND
THERESA M. DOWDY
WILLIAM HEWIG 111
DEBORAH A. ELIASON
JEANNE S. MCKNIGHT
JUDITH C. CUTLER
RICHARD BOWEN
KOPELMAN AND PAIGE, P. C.
ATTORNEYS AT LAW
31 ST. JAMES AVENUE
BOSTON. MASSACHUSETTS 02716.4102
BOSTON OFFICE
(6171 556.0007
FAX (6171 664.1796
NORTHAMPTON OFFICE
(4131 565.6632
WORCESTER OFFICE
1606) 752.0203
November 21, 1997
BY FACSIMILE - (978) E88-9542
]vis. Kathleen Bradley Colwell
'1 own Planner
North Andover Town Hall
FPD
;
NOV 2 4 1097
KATHLEEN M. O'DONNELL
DAVID J. DONESKI
SANDRA CHARTON
ILANA M QUIRK
JOHN RICHARD HUCKSAM. JR.
SUSAN M. CALLAHAN
BRIAN W. RILEY
JOHN J. KENNEY. JR.
ROBERT PATTEN
MARY L. GIORGIO
KATHLEEN E. CONNOLLY
MICHELE E. RANOAZZO
PETER J. FEUERBACH
MARY JO HARRIS
THOMAS W. MCENANEY
JONATHAN M. SILVERSTEIN
TIMOTHY J. ERVIN
KATHARINE I. GOREE
CHRISTOPHER J. POLLART
120 Main Street
NNING 9 -Non
North Andover, MA 01845
Re: Berrington Estates Subdivision - Interpretation of Watershed
Protection District Bylaw and related (,questions
Dear Ms. Colwell:
You have requested an opinion regarding several issues raised by the applicant's attorney
in regard to the proposed Berrington Estates subdivision.
It is my understanding that, in particular, you seek clarification as to: 1) whether the
Watershed Protection District Bylaw (the "Bylaw") affects this proposed subdivision; 2) whether
the applicant, if required to obtain a variance, should obtain that variance from the Planning Board
or from the Zoning Board of Appeals; and 3) what role the Conservation Commission will play
with respect to this proposed subdivision process.
Briefly, in response to these questions, it is my opinion that: 1) the Watershed Protection
District Bylaw xvill affect any lot(s) the applicant records after October 24, 1994, the effective
date of the Bylaw, 2) if the applicant is required to obtain a variance fioni any part of the Zoning
Bylaw, including the Watershed Protection District Bylaw, the Zoning Board of Appeals will he
(lie proper authority to issue such a variance; and 3) the Conservation Commission will be
responsible for enforcing the Town's general (i.e., nun-zoninjg)Wetlands Bylaw and the State
Wetlands Protection Act, but not the Watershed Protection District Bylaw which will be enforced
by the Planning Board.
PRINTED ON RECYCLED PAPER
ZO-d ZV96 999 SOS 'AaO 'WOO -AaAOPUV 4'1 -ADN die=Z1 86-Zi-ueC
KOPELMAN AND PAIGE, P.C.
Ms. Kathleen Bradley Colwell
Town Planner
November 21, 1997
Page 2
Application of the October. 1994 Watershed Protection District Bylaw
The facts as I understand them are as follows. The applicant seeks to subdivide a parcel
of property which he has owned since prior to the effective date of the Watershed Protection
District Bylaw. However, before lie actually obtains subdivision approval for this property, he is
proposing to build a road into the center of it; lie intends to later use this road as the access into
the subdivisiol?. This proposed road wrill undisputedly cross a non -disturbance buffer zone a--
defined
sdefined in the Watershed Protection District Bylaw. He hopes that by building the road prior to
completing the subdivision process, he will avoid the Watershed Protection District Bylaw
requirements because the road will have been built un u lot which was in existence before October
24, 1994.
In my opinion, the applicant's property will not be subject to the restrictions of the
Watershed Protection District By-law until the applicant records or registers the property as
consisting of nein lots. That is, in my opinion the Bylaw requirements only apply to those lots
recorded or re List, �tered after October 24, 1994. Since the applicant's lot was in existence before
that date, it is my opinion that it is not subject to the Bylaw. Furthermore, in my opinion, merely
proposing to subdivide the lot does not trigger the restrictions under the Bylasv. In my opinion,
the language of the Bylaw clearly states that it is applicable only to those lots recorded and
registered after Octuber 241, 1997. Therefore:, in my opinion, until the applicant records or
reaisters new lots of the subdivision, the Bylaw does not apply. As a result, whether the Bylaw
will apply or not in this particular case depends largely on how the applicant chooses to proceed.
It is possible that the applicant could complete the subdivision process, including construction of
the road, without recording any of (lie lots, i.e., by covenanting to secure the construction of the
subdivision ruad, thereby avoiding the necessity of recording the lots until after construction is
complete. On the other hand, it is possible he will record the lots prior to the completion of
construction, (after posting a bond or due to another circumstance), thereby triggering the Bylaw
requirements, in my opinion. In summary, it is my opinion that once the new lots arc recorded,
the Bylaw will become applicable, but work performed on the existing, °unsubdivided" lot will not
be subject to the Bylaw.
Variance Procedures
With respect to the second question, it is my opinion that if the applicant should require a
variance I'rulu the provisions ofthe Watershed Protection District Bylaw, he must obtain such a
variance from the Zoning; Board of Appeals. In a letter dated July 23, 1997, the applicant's
attorney seems to indicate lie believes the Planning Board would be the proper authority from
which to obtain a variance. In my opinion, this position is mistaken. While it is true that pursuant
to the Watershed Protection District Bylaw, the Planning Board Is cinpuwered to hear and act on
special pCnnit requests, nothing; alters the exclusive authority given to the 7.oning Board of
Appeals to hear and decide variance requests.
£O - d ZV96 099. SOS - AaO -WOO „AaAOPUV ya_.AON d L C = Z i 96 - Z i -UEC
Ms. Kathleen Bradley Colwell
Town Planner
November 21, 1997
Page 3
The third question appears to ask what role and authority the Conservation Commission
has with respect to processing this subdivision request. In my opinion, the Conservation
Commission will conduct a review which is separate from that of the Planning Board and Zoning
Board of Appeals. The Conservation Commission will review the applicant's plan to ensure
compliance with the Tuwn's Wetlands Bylaw and State Wetlands Protection Act. The Planning
Board (and Zoning Board of Appeals, if necessary) will review the plan with respect to the
Watershed Protection District bylaw and all other applicable zoning and subdivision provisions,
rules and regulations.
Should you have further questions iegarding this matter, please do not hesitate to contact
me.
Very truly yours,
Joel B. Bard
JBBJKAH/atg
cc: Town Manager
Board of Selectmen
36919/nandl9999
b0' d ZV96 889 IROS ' AeO -woo „tanopud WI. AON dZC = Z i 86-Z i -uL-C'
..
-.i
Herbert P. Phillips, P.C.
Michael A. Gerstein LAW OFFICES OF APR 13 199$
Stuart M. Holber /7 Q Clwi
p/�_Russell . wensChannenTI * s / efstp/y� Hoffia /11 lI / —n- /"r "�Jane M. Owens Triano `�� f NlJ Ll..1/Iif[(ll,l V� _
Ronald N. Beauregard
Kevin P. Rauseo 25 Kenoza Avenue ■ Haverhill, MA 01830
Tel: (978) 374-1131 1(800) 457-6912 0 Fax: (978) 372-3086
Of Counsel:
John T. Pollano
Gerald M. Lewis
April 10, 1998
Town of North Andover
Zoning Board of Appeals
146 Main Street
North Andover, MA 01845
Re: Applicant: MPG Realty Corp.
Owner: Gwendolyn C. Smith
Location: Dale Street (Map 37B, Lot 1)
Dear Board Members:
Enclosed please find five (5) copies of the Memorandum in Support of Applicant's Request for a
Variance relative to the above referenced matter.
I wish to confirm the hearing on such request is set for Tuesday, April 14, 1998.
MPG
By itt5
Michael A. Gerstein
MAG/lf
cc: MPG Realty Corp.
All attorneys admitted in Massachusetts.
Holber, Beauregard and Rauseo admitted also in New Hampshire.
Holber admitted also in Maine.
Other office: 32 Saco Avenue, P.O. Box W, Old Orchard, ME 04064 Reply to Haverhill office only
X
4'
April 10, 1998
Town of North Andover
Zoning Board of Appeals
146 Main Street
North Andover, MA 01845
Re: Applicant: MPG Realty Corp.
Owner: Gwendolyn C. Smith
Location: Dale Street (Map 37B, Lot 1)
MEMORANDUM IN SUPPORT OF APPLICANT'S REQUEST FOR A VARIANCE
FACTS
Applicant proposes to construct an eight (8) lot residential subdivision on the above site and has
filed a Definitive Plan for subdivision approval with the North Andover Planning Board. Such
matter has already been heard at such Planning Board on March 17, 1998 and April 7, 1998. At
such recent meeting, the Planning Board voted to close the public hearing. Applicant has further
received an Order of Conditions from the Conservation Commission dated January 7, 1998.
Applicant hereby seeks a variance, if applicable or required, to build a roadway within the seventy
five foot conservation zone, pursuant to Section 4.136.2 (f) of the Zoning By Laws of the Town
of North Andover.
As further background information, you should be aware the lot has two existing access
driveways with culverts, one of which is currently being used for access purposes. There is no
other reasonable means of access to the lot and, in fact, a previous subdivision known as
"Appleton Estates" was approved using such access points in 1957. Both the driveway locations
are in close proximity to the jurisdictional wetlands, although there is no other access that might
be available which necessitates the variance request. It would be important to note that a review
of further Dale Street lots abutting the site all evidence driveways that fall within the conservation
setbacks.
There are further issues relative to this lot dealing with the applicability of the provisions of the
Zoning By Laws which were made known to Town Counsel. The provisions relating to the
elm
Zoning By Laws which were made known to Town Counsel. The provisions relating to the
establishment of the Conservation Zone and the enlargement of the non -disturbance zone [Section
4.136.2 (f)] only apply to lots recorded and registered after October 24, 1994, the date of the
enactment of such provision. The owners obtained title to such lot in March, 1960, thus
exempting the applicability of the provisions or at least raising the question as to the applicability
of such provision.
Notwithstanding such situation, Applicant is requesting a variance so as to proceed with such
subdivision and to be able to use the roadways already in existence.
ISSUE PRESENTED: WHETHER THE ZONING BOARD OF APPEALS FOR THE
TOWN OF NORTH ANDOVER SHOULD GRANT A
VARIANCE TO APPLICANT
ARGUMENT
The Zoning Bylaws for the Town of North Andover provide for standards to be used in granting
variances pursuant to Section 10.4. Such also exist in Massachusetts General Laws Chapter 40A,
Section 10, which allows the granting of a variance where
"Owing to circumstances relating to the soil conditions, shape or topography of such land
or structures and especially affecting such land or structures but not affecting generally the
zoning district in which it is located, a literal enforcement of the provisions of the
Ordinance or Bylaw would involve substantial hardship, financial or otherwise, to the
petitioner or appellant, 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 such ordinance or bylaw."
The courts have held that substantial hardship, financial or otherwise, is found only where, under
unique circumstances, it is not economically feasible or likely that the locus would be developed in
the future for a use permitted by the zoning ordinance or bylaw. Such was the decision rendered
in the case of Cavanaugh v. DiFlumera 9 Mass App Ct 396, 401 N.E. 2d 867, 871 (1980).
It is important to note and review in the Request for Variance, that the roadways through which
access is being sought provide the only means of access to such lot. The owner, Gwendolyn
Smith, is currently suffering from an advanced state of Alzheimer's Disease and is unable to care
for herself, and is cared for by her children, including her son, Geoffrey Smith, who has been
appointed her guardian. While it is acknowledged that the personal hardship of an owner would
not be the basis of granting a variance based upon hardship, it is important to note that such land
has been in the Smith family for many years, a previous subdivision was allowed using the same
access, and the failure to grant such variance would prevent the best and proper use of such land,
that being for residential purposes.
There are unique conditions affecting the shape, topography and soil conditions of the lot due to
the access issues, the situation of such land being in a watershed district and the necessity to
traverse such currently existing driveway to provide the needed access. Such unique condition is
clearly evident in this matter and is worthy of your further consideration.
It is further believed that a literal enforcement of the Zoning requirements would create a
hardship. An older case of Brackett v. Board of Appeal of Boston, 30 NE 2d 961 (1942)
provided language that I think would be worthy of your consideration in dealing with hardship
and an owner's not being allowed to reasonable use of the property. The Court in such Brackett
case stated, "no one factor determines the question of what is practical, difficult or unnecessary
hardship, but all relevant factors, when taken together, must indicate that the plight of the
premises in question is unique." The hardship to the Smith Family is apparent and the inability of
the Applicant to make proper use of such land, for residential purposes, clearly mandate the
necessity of a variance being granted.
It is further believed that should this Board grant a variance, it will not substantially harm public
good, nor substantially derogate from the Bylaws' purpose.
It is certainly the intent of the Applicant to maintain the residential character of the neighborhood,
and comply with Commonwealth of Massachusetts law that will protect the property both as to its
development and conservation issues. Applicant only seeks to have use of a driveway, which
currently exists, for access to such property and use related utilities. The fact that the driveway is
in the Watershed Protection District does not cause any harm to the public good nor derogate
from the Bylaws' purpose, especially when one considers that issues dealing with such Watershed
District were reviewed by the Conservation Commission, which issued an Order of Conditions
and which further has been considered by the Planning Board in its determination in granting
subdivision approval.
It is further noted that the Courts have held that "some derogation from the Bylaw's purposes is
anticipated by every variance; otherwise, the denial of relief on the basis of a slight or insubstantial
department from the goals of the Bylaw would prohibit the grant of any variance". Cavanaugh v.
DiFlumera 9 Mass App. Ct. 396, 401, 401 NE 2d 867 (1980).
It is acknowledged that a variance is only granted in situations where all applicable provisions of
the Zoning By Laws of the Town of North Andover and the Commonwealth of Massachusetts are
met. It is believed, in this petition, that Applicant and Owner have submitted proper and
substantial information and documentation, have reviewed matters with Town Counsel and the
Town Engineer, and have met with all required Boards and officials to comply with all municipal
requirements. The use of the driveway is an integral part" and a prerequisite to the use of the lot
and it is believed that the standards for a variance have been met, the requisite hardships and
issues have been addressed, the inhabitants of the Town of North Andover would not be adversely
affected, and that the granting of a variance would be the proper and suitable relief.
,V
CONCLUSION
For all matters set forth in this brief statement, petitioner, MPG Realty Corp., respectfully
requests that its petition seeking a variance is granted.
MPG Realty Corp.
by its attorney,
Michael A. Gerstein
Phillips, Gerstein, Holber & Channen
25 Kenoza Avenue
Haverhill, MA 01830
(978) 374-1131
BBO # 190040
l EE APR 2 6
April 26, 1999
Town of North Andover
Zoning Board of Appeals
146 Main Street
N. Andover, MA 01845
RE: Applicant: MPG Realty Corp.
Owner: Gwendolyn C. Smith
Location: Dale Street (Map 37B, Lot 1)
MEMORANDUM IN SUPPORT OF APPLICANT'S REQUEST FOR A VARIANCE
FACTS
Applicant has received approval from the Planning Board for an eight (8) lot subdivision
known as Berrington Estates Place of which seven (7) lots will be for construction of single
family residential homes and one (1) lot reserved as a conservation lot. The Planning Board
further granted a special permit from the requirements of the North Andover Zoning By -Law,
Section 4.136(b)(d)(D) of the Watershed Protection District so as to allow the applicant to build a
roadway, waterline and detention basins within the non -discharge non -disturbance and
conservation buffer zones. The special permit was approved on April 21, 1998 and received by
the Town Clerk's office on April 23, 1998 and the definitive subdivision was approved on April
21, 1998 and received in the Town Clerk's office on April 22, 1998. The approval by the
Planning Board was contingent upon receipt of a variance from the Zoning Board of Appeals to
allow for the roadway to be constructed within the seventy five (75) foot non -disturbance buffer
zone.
On April 4, 1998 a hearing was convened by the Zoning Board of Appeals dealing with
the issue of applicability of 4.136.2(b) Table 1 and 2, 4.136.2(f) and 4.136.3(d) as well as the
seeking of a variance for the project. It is applicant's position that great confusion existed as to
the applicability issue at the hearing, and as a result thereof, an adverse decision was received by
Applicant. This was appealed to the Land Court of the Commonwealth of Massachusetts, which
7
appeal is still pending.
On April 6, 1999 as a result of a Petition for Repetitive Hearing pursuant to Section 10.8
of the North Andover Zoning By -Laws, the Planning Board unanimously approved the
Repetitive Petition and thus the present case is currently, again, before the Zoning Board of
Appeals for a Variance.
As further background information as to the locus in question, you should be aware the
lot has two existing access driveways with culverts, one of which is currently being used for
access purposes. There is no other reasonable means of access to the lot and, in fact, a previous
subdivision known as "Appleton Estates" was approved using such access points in 1957. Both
the driveway locations are in close proximity to the jurisdictional wetlands, although there is no
other access that might be available which necessitates the variance request. It would be
important to note that a review of further Dale Street lots abutting the site all evidence driveways
that fall within the conservation setbacks.
ISSUES PRESENTED: WHETHER THERE ARE SPECIFIC AND MATERIAL
CHANGES AND CONDITIONS TO ALLOW FOR
CONSIDERATION OF VARIANCE REQUEST.
WETHER THE ZONING BOARD OF APPEALS FOR
THE TOWN OF NORTH ANDOVER SHOULD GRANT
A VARIANCE TO APPLICANT.
ARGUMENT
1. Repetitive Petition. Section 10.8 of the Zoning By -Laws for the Town of North Andover
states that "the Zoning Board of Appeals may not act favorably upon a Petition which has been
previously denied within a two (2) year period of time unless four (4) of the five (5) members of
the Zoning Board of Appeals find that there are specific and material changes in the conditions
upon which the changes in the record of its proceedings and only after a public hearing, held by
the Planning Board, at which consent to allow the Petitioner to re -petition the Zoning Board of
Appeals will be considered and after notice is given to parties in interest and only with four (4) of
the five (5) members of the Planning Board voting to grant consent". Such approval from the
Planning Board was received on April 6, 1999, and Applicant contends that specific and material
changes do exist in this matter. The statutory'provision on Re -Applications are contained in
M.G.L. Chapter 40A Section 16 which also requires "Specific and material changes in the
conditions upon which the previous unfavorable action was based". Applicant contends, as listed
in the submittal made with this application to the Board, that specific and material changes have,
in fact, been made and which are specifically highlighted for this Board's consideration.
a_
X.
a
It has been held by the Courts of the Commonwealth that when application for variance
has been finally and unfavorably acted upon it may not be favorably acted upon within 2 years
unless 1) The Board of Appeals finds that there are specific and material changes in the proposal
and 2) the Planning Board consents to reconsideration. Paquin v. Board of Appeals 27 Mass.
App.Ct. 577, 541 N.E.2d 352 (1989). The Appeals Court addressed the issues required in the
case of Ranney v. Board of Appeals of Nantucket 11 Mass.App.Ct. 112, 414 N.E.2d 373 (1981)
in upholding the determination by a Planning Board that "cosmetic" changes in the plans
constituted "specific and material changes" within the meaning of Section 16. While such case
dealt with proposed additions to a motel, the changes therein involved issues dealing with
lighting, sound installation and landscaping which, while determined to be "cosmetic", were
sufficient for the Court to find them to be specific and material. The changes made in
Applicant's Plan on the Dale Street lot are quite substantial, and this Applicant contends that
such prerequisite for consideration of the variance has been met.
2. Variance Request. The Zoning Bylaws for the Town of North Andover provide for standards
to be used in granting variances pursuant to Section 10.4. Such also exist in Massachusetts
General Laws Chapter 40A, Section 10, which allows the granting of a variance where
"owing to circumstances relating to the soil conditions, shape or topography of such land
or structures and especially affecting such land or structures but not affecting generally
the zoning district in which it is located, a literal enforcement of the provisions of the
Ordinance or Bylaw would involve substantial hardship, financial or otherwise, to the
petitioner or appellant, 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 such ordinance or bylaw."
The courts have held that substantial hardship, financial or otherwise, is found only where, under
unique circumstances, it is not economically feasible nor likely that the locus would be
developed in the future for a use permitted by the zoning ordinance or bylaw. Such was the
decision rendered in the case of Cavanaugh v. DiFlumera 9 Mass App Ct 396, 401 N.E. 2d 867,
871 (1980).
It is important to note and review in the Request for Variance, that the roadways through which
access is being sought provide the only means of access to such lot. The owner, Gwendolyn
Smith, is currently suffering from an advanced state of Alzheimer's Disease and is unable to care
for herself, and is cared for by her children, including her son, Geoffrey Smith, who has been
appointed her guardian. While it is acknowledged that the personal hardship of an owner would
not be the basis of granting a variance based upon hardship, it is important to note that such land
has been in the Smith family for many years, a previous subdivision was allowed using the same
access, and the failure to grant such variance would prevent the best and proper use of such land,
that being for residential purposes.
There are unique conditions affecting the shape, topography and soil conditions of the lot due to
the access issues, the situation of such land being in a watershed district and the necessity to
traverse such currently existing driveway to provide the needed access. Such unique condition is
clearly evident in this matter and is worthy of your further consideration.
It is further believed that a literal enforcement of the Zoning requirements would create a
hardship. An older case of Brackett v. Board of Appeal of Boston, 30 NE 2d 961 (1942)
provided language that I think would be worthy of your consideration in dealing with hardship
and an owner's not being allowed to reasonable use of the property. The Court in such Brackett
case stated, "no one factor determines the question of what is practical, difficult or unnecessary
hardship, but all relevant factors, when taken together, must indicate that the plight of the
premises in question is unique." The hardship to the Smith Family is apparent and the inability
of the Applicant to make proper use of such land, for residential purposes, clearly mandate the
necessity of a variance being granted.
It is further believed that should this Board grant a variance, it will not substantially harm public
good, nor substantially derogate from the Bylaws' purpose.
It is certainly the intent of the Applicant to maintain the residential character of the
neighborhood, and comply with Commonwealth of Massachusetts law that will protect the
property both as to its development and conservation issues. Applicant only seeks to have use of
a driveway, which currently exists, for access to such property and use related utilities. The fact
that the driveway is in the Watershed Protection District does not cause any harm to the public
good nor derogate from the Bylaws' purpose, especially when one considers that issues dealing
with such Watershed District were reviewed by the Conservation Commission, which issued an
Order of Conditions and which further has been considered by the Planning Board in its
determination in granting subdivision approval.
It is further noted that the Courts have held that "some derogation from the Bylaw's purposes is
anticipated by every variance; otherwise, the denial of relief on the basis of a slight or
insubstantial department from the goals of the Bylaw would prohibit the grant of any variance".
Cavanaugh v. DiFlumera 9 Mass App. Ct. 396, 401, 401 NE 2d 867 (1980).
It is acknowledged that a variance is only granted in situations where all applicable provisions of
the Zoning By Laws of the Town of North Andover and the Commonwealth of Massachusetts are
met. It is believed, in this petition, that Applicant and Owner have submitted proper and
substantial information and documentation, have reviewed matters with Town Counsel and the
Town Engineer, and have met with all required Boards and officials to comply with all municipal
requirements. The use of the driveway is an integral part and a prerequisite to the use of the lot
and it is believed that the standards for a variance have been met, the requisite hardships and
issues have been addressed, the inhabitants of the Town of North Andover would not be
.adversely affected, and that the granting of a variance would be the proper and suitable relief.
CONCLUSION
For all matters set forth in this brief statement, petitioner, MPG Realty Corp., respectfully
requests that its petition seeking a variance is granted.
MPG Realty Corp.
by its attorney,
ichael A. Gerstein
Phillips, Gerstein, Holber &
Channen
25 Kenoza Avenue
Haverhill, MA 01830
(978) 374-1131
BBO # 190040
Herbert P. Phillips, P.C.
Michael A. Gerstein
Stuart M. Holber
Russell S. Channen
Jane M. Owens Triano
Kevin P. Rauseo
Daniel J. Norris
Of Counsel:
Gerald M. Lewis
Harold N. Mack
Town of North Andover
Zoning Board of Appeals
146 Main Street
N. Andover, MA 01845
RE: MPG Realty Corp.
Dear Sir/Madam:
LAW OFFICES OF
Thos, 6ers"7. Hoffia & Chmwn
25 Kenoza Avenue ■ Haverhill, MA 01830
Tel: (978) 374-1131 / (800) 457-6912 0 Fax: (978) 372-3086
April 26, 1999
VIA HAND DELIVERY
Enclosed please find Memorandum in Support of Applicant's Request for a Variance.
I also wish to confirm the hearing on Tuesday, May 11, 1999 at 7:30 P.M.
Very truly yours,
Michael A. Gerstein
MAG/j cm
enc.
All attorneys admitted in Massachusetts.
Holber, Rauseo and Norris admitted also in New Hampshire.
Holber admitted also in Maine.
Other office: 32 Saco Avenue, P.O. Box W, Old Orchard, ME 04064 Reply to Haverhill office only
TABLE OF CONTENTS
FOR REPETITIVE PETITION REQUEST:
Cover Letter
Repetitive Petition Request
Application
Variance Request
Addendum "A"
Owners Affidavit
Property Deed
Abutter List
Exhibit 1
Repetitive Petition Request
Exhibit 2
Supporting Documents
FOR VARIANCE REQUEST:
Exhibit 1 Repetitive Petition Request Data
Exhibit 2 Supporting Documents
Exhibit 3 Alternative Access Report
Exhibit 4 Conservation Commission
Order of Conditions
Exhibit 5 Planning Board Definitive Subdivision
Conditional Approval
Special Permit
Exhibit 6 Letter-Atty. Joel B. Bard
Letter-Atty. Michael A. Gerstein
Compliance Brief
PD Associates, LLC
Real Estate Consultants
1600 Candia Road, Suite #7, Manchester, NH 03109
April 1, 1999.
Zoning Board of Appeals
27 Charles Street
North Andover, MA 01845
Attn: Chairman
Dear Mr. Chairman,
Telephone #:(603)641-8200
Facsimile #:(603)641-8882
Please accept this letter as my clients request for a repetitive petition hearing regarding
the property located on Dale Street and identified as Tax Map 37B, Lot 1. This
development is also referred to as Barrington Place. The Zoning Board of Appeals has
jurisdiction in. our request pursuant to Section 10.8 of the Town of North Andover Zoning,
Bylaw and M.G.L. ch. 40A, §16.
I have also included in this submittal package our application for a variance. It appears
directly after this letter. In our application, we have requested relief from Section 4.136
and added our request for a hearing for a repetitive petition. We feel that the information
C as submitted, will address both requests. We have segmented the Exhibits in order for
the Board to better review our two separate requests for approval.
11
C
L
F�
If you would like any additional information, please feel free to contact me at your
earliest convenience.
Respectfully submitted,.
z 4,z, e I ��-4W14
Elsner A. Pease ,H cPM, EA
Owner's Representative
Cc: Kenneth Grandstaff
Michael A. Gerstein, Esq.
TOWN OF NORTH ANDOVERQt raRT,.
{{b��
OFFICE OF
J *��S •ATO lf',`�
COib1 MTI CITY DEVELOPMENT AND SERVICES S.CHUg4
GWilli= J. Scott
DireC:or 27 CHARLES STREET FAX (973) 683-95422
a(978)688-95-31 NORTH ANDOVER, MASSACHUSE 1 I'S 014 4:
REQU=MENTS AND DIRECTIONS OF THE ZONING BOARD OF APPEALS
C FOR FILING APPLICATION FOR THE FOLLOWING:.
VARIANCES AND SPECIAL PERwIITS
PARTY AGGRIEVED
1. Every application for action by the Board shall be made on a form approval by the Board.
These forms shall be furnished`by the Administrative Secretary upon request. Any
communication 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.
2. Original and ten (10) copies of the application with a certified abutters list from the Assessors
office. (Certified abutters -list must accompany application.)
3. Ten 10) copies of the site plan, and one molar. The mylar shall be stamped by a Registered
Land Surveyor or a Civil Engineer (with discipLine). The signature box shall have five lines
for signatures. The mylar and decision are to be recorded with the Registry of Deeds after
signed approval from .the Zoning Boar-d.of Appeals. A copy of recording will accompany any
Cj buildingpermits application according to M.G.L. Chapter 409, Section 14.
4. The fee for publishing the legal notice will be paid for by the petitioner when he/she delivers
the legal notice to the newspaper. The -legal notice shall be published twice, o.ne wea- ,q art in
a local newspaper.
a
F,
A copy of the legal notice must be sent to all abutters, by Zoning Board of Appeals Secretary,
via mail at least 10 days prior to the public hearing, The petitioner will be responsible and
billed for postage incurred for mailina of the leaal notice and the decision. The Zoning board
of Appeals Secretary will also mail the Notice-cfDecision to the Abutters and the Petitioner.
6. Check for S25.00 for filing fee, made out to the Town of North Andover. .
1 of 8
BOARD OF APPEALS 633-9541 BU'ILDIN'GS 0583: 545 CONSLRVATIO 1683-9530 HEAL.TH633-9540 PLANNING 633-9535
GI
7. The applications must be time -stamped by the Town Clerk before acceptance by the Board of
nappeals.
lel
S. The petitioner or their agent or a legal representative must attend the public hearing.
9. Any applications involving State highways, such as Route 114, Route 125, etc., must have a copy of
site plans subrnitt-ed -.o -ivir. ShermanEidelmran (or -leis successor) -at -the -mak Dept. -of -Public Warks
W'orks. District 1, 519 Appleton St., Arlington. NIA 02171 at least one weep before the scheduled
meeting.
PLAN OF LAND TO A-CCO-NI-P.ANY PETIT.10N
Each application and petiticn.to the Board shall be accompanied by the following described plan:
The site of the plan shall ce 11" X 17", drawn to scale, 1 inch equals 40 feet: it shall have a north
C point, names of stree.'s.-zG-ning-districts,-names -and-address-o-f-owners-of-pre$ert-ies3xiz a rPini u -of
00 feet of the subject property, property lines and location of buildings on surrounding properties. The
location of buildings or use of the property where a variance is requested and distances from adjacent
buildings and property lines shall be verified in the field and shown on the plan. The dimensions of the lot
and theP ercentage-.ofthe lot -covered by the -principal-andaccessory-buildingsand-the required -parking
spaces shall be shown. Entrances, e:cits, driveways, etc, that are pertinent to the granting of the variance
Cshall be shown. All proposed data shall be shown in red.
Any topographical feature of the parcel of land relied upon for a variance, such as ledge, rock peat, or
natural condition of water, -brook-or-r-iver, shall be shoe -ori the engineering -plan. When a variance is
requested to subdivide a parcel of land the dimensions and area of the surrounding lots may be taken
from the deed or lotting plan for comparison of the site of the lot in the neighborhood, noted on the plan
as such, and marked `approximate".
The plan shall be signed and bear the seal of a registered land surveyor or civil engineer (with discipline).
Any plans presented with the petition shall remain a part of the records of the board of Appeals.
Pi
If living quarters are to be remodeled, or areas are to be converted into living quarters, in addition to the
plot plan, ten (10) copies of -the following described -plans shall be -furnished.
t
C
2 of 8
El.
G1. A floor plan af-each floer-on-w-hich-remodeing-is4o.be Clone or areas-cGnvert-ed into -ling-quarters.
2. A floor plan showing the stairways, balls, doors opening into the halls, and exit doors of each floor
or -floors where no remodeling or converting is to be done.
3. The plans and elevations shall show all existing work. All proposed work shall be shown in red.
The size of each -clan shall -be 1-1" X 17" -or 47" X 22"; -it shall -be -dr -ate -t -o scale, '/4-inch-equals-o-ne
foot.
For petitions requesting variance (s) from the provisions of Section 7, Paragraphs 7.1, 7.2, 7.3 and 7.4
and Table 2 of the Zoning Bylaw for conveyance purposes only, a site plan, certified by a registered civil
nenginetr or land surveyor (with discipline), of the parcel of land with a structure thereon being conveyed,
U will beyacceptabie.to4he-bear-d-ef-A-ppea:ls-gr vided.
a1. The dwelling(s); structure(s), orwere constructed prior to March 14, 1977.
I The petition is not to allow construction or alteration to the dwelling(s), structure(s) or building(s)
which will result -in -the -need-fo'r-the -issuance-of-a-building permit.
3. The site of the plan shall be not smaller than 11" X 17" it shall be drawn to scale, 1 inch equals 40
Cfeet. The existing area of the parcel, frontage, and existing setbacks of the dwelling(s), structure(s)
or building(s) being conveyed -must be designated.
4. Proper space is to be provided on the site plans for the Board's signatures, as well as adequate space
for the following information: Date of filing, date of public hearing, and date of approval. Show
square footage of existing dw-e- ng -and show square -footage of proposed -addition -en -the site -plan.
REQUIRE'NIENT - Legal Notification to abutters in conjunction with an applicants request for a hearing
on a variance or special permit before the Board of Appeals is an absolute requirement. Lists of abutters
are to be certified by the Town Assessor, advertised and cleared through the Administrative Secretary of
the Board of Appeals,-in.due time, before -the .hearing date. (see note 4 of page 4).
FAILURE TO COMPLY WITH THIS PROCEDURE WILL NOT ALLOW THE PETITION TO BE
PLACED ON THE ZONING BOARD OF APPEALS AGENDA.
3 of 8
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NOTES: r"
1. Variance(s) lapse if not exercised in one (1) year from date of decision. The variance(s) must
Cbe recorded in the Registry of Deeds and a copy of same returned to the Zoning Board of
Appeals and the Building Inspector.
1. a) A one time extension of six months may be granted if applied for, before the one year
anniversary date has expired.
2. A Special Permit lapses if not exercised in two (2) years. This Special Permit must be
C recorded in the -Registry -of Deeds -and -a-copy of same returned to -the Zoning Board of
Appeals and the. Building Inspector.
3: All plans and;elevations presented with the petition shall remain a part of the records of the
Board of Appeals.
4. The last day to petition the board of Appeals is the noon time 27 days in advance of Board
meeting and befo-r-e-the-first -publicat-io-n-0-f-the-Legal Nctices-in-a-local newspaper. Notice of
a public hearing is required notice shall be give by publication in a local newspaper in the
town once in each of two successive weeks, the first publication to be not less than fourteen
days before the day of the hearing. Regular Board of Appeals meetings are the second
Tuesday of each calendar month.
5. The Administrative Secretary's business hours are as follows:
Monday
9:00 ANI to 2:00 PM
Tuesday
9-00 AM -to 1:00 -PM
Wednesday
9:00 AM to 2:00 PM
Thursday
9:00 AM to 2:00 PM
Friday
No _business Fours
4 of 8
0
CReceived by Town- r -k:
JOYCE 14A
TOWN Ci K
NORTH ANDOVER
TOWN OF NORTH ANDOVER, MASSACHUSETI� R Z 8 42 M fi
CBOARD OF APPEALS
APPLICATION FORREUEF-FRNI TEE ZONING ORDINANCE
Applicant Mpn 7gPa1 ty Corporation Address 11 Old Boston Road
l
—Tewksbury, MA 01876 Tel. No. 978-851-9395
J
1.
lic ant is hereby made:
a) For aU4air-.6 iinrlgTr-ernents-o£Section 4
Paragraph 12ti? f and Table t & .of the Zoning Bylaws.
136.3(d)
C b) For a Special Permit under Section____ Paragraph
of the Zoning 8-ylaws
l.� c) As a Party Aggrieved; for review of a decision made by the Building Inspector or other
authority.
d) Repetitive Petition Hearing..:
u 2. a Premises affected are land and building(s)
numbered Street.
Cb) Premises affected area property with frontage on the North) South () East ( ) West ( )
side of Dale Street.
C Street, and known as No. Map 37B, Lot #1, Dale Street.
C) Premises affected are in Zoning District R-1 . and the premises affected have an
area o f 1,305,493 square -feet-and frontage o f 501 & feet.
3. Ownership:
a) Name and address of owner (if joint ownership, give all names):
R. Ashton & Gwendolyn C. Smith, C/O Trustee Geoffrey Smith
15 Driftwood Drive, North Bradford, CT 06471
Date of Purchase -1-25-1 chdPrevious-OwnerLantern Corporation
b) 1. If applicant is not owner, check his/her interest in premises:
X Prospective Purchaser -Lessee Other
C2. Letter of authorization for Variance/Special Permit
required.
5 of 8 ,
1
a
C4. Site of proposed -herding: N/A frost; Feet -deep;
C'; The principal points upon which I base my application are as follows: (must be stated in detail)
See attached exhibits for more detail.
(1) Property has 2 existing access driveways with culverts,one is
currentyl being used as access.
(2) Both driveway locations are in close proximity to jurisdictional
wetlands.
(3) No other reasonable means of access are available.
(4),All Dale St. lots abutting this site have driveways that fall within
n the rnngpryatinn sptharkG
E(5) Granting relief would allow access to property, not otherwise
available.
(6) Applicant feels that relief is not necessary pursuant to 4.136.2(f�
Table 2.
I agree to pav the filing fee, advertising in newspaper, and incidental expenses*
—Signature of Petitioner (s)
6 of
Ell
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Height stories;
feet.
a) Approximate-date-o-f-er-ectian N/A
U
b) Occupancy or use of each floor: N/A
ac)
Type of construction N/A
5. Has there been a previous appeal. under zoning,
on these premises? No When
6. Description ofzzlief -qGug--Iat-o-n--tbis-pet-itian To
build a roadway with all required details
within the 75' conservation zone,
if applicable. (See 4.136.2(f)Tables 1&2)
Ell
7. Deed recorded in the Registry of Deeds in Book
912 'o. Page 187 & 188
Land Court Certificate -- o. -Book
-Pate
C'; The principal points upon which I base my application are as follows: (must be stated in detail)
See attached exhibits for more detail.
(1) Property has 2 existing access driveways with culverts,one is
currentyl being used as access.
(2) Both driveway locations are in close proximity to jurisdictional
wetlands.
(3) No other reasonable means of access are available.
(4),All Dale St. lots abutting this site have driveways that fall within
n the rnngpryatinn sptharkG
E(5) Granting relief would allow access to property, not otherwise
available.
(6) Applicant feels that relief is not necessary pursuant to 4.136.2(f�
Table 2.
I agree to pav the filing fee, advertising in newspaper, and incidental expenses*
—Signature of Petitioner (s)
6 of
Ell
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DESCRIPTION OF VARIANCE REQUESTED
ZOl-D;GDISTRICT: R-1 Residential
Required Setback ExistinQ Setback Relief
or Area or ,area Requested
Conservation ZpnP 751 Variac 0' - 75'
Lot Dimension
Area
Street Frontage
50' & 186+/ Peet
Front Setback (s`
Side Setback (s)
Rear Setback (s)
Special Per= Request:
7 of 8
I
ADDENDUM "A"
PRINCIPAL POINTS
1. Property has been endorsed as an eight (8) Lot Subdivision, with 2 -cul-de-sac roadways.
Seven (7) of the lots are buildable and one (1) is for conservation only.
2. Property has two existing means of access. The Westerly most access is currently used as
a roadway for ingress and egress to the property. Both the east and west accesses have
existing culverts that allow drainage under the current conditions. Culverts will remain
after roadway improvements. (Exhibit "1")
3. Both access points are in close proximity to bordering vegetated wetlands (BVW). Both
access points are within the 75' foot conservation buffer of the Watershed Protection
Bylaw, as determined by the Planning Board. (Exhibit "2")
4. There is no reasonable alternative access point. Homes and other BVW areas surround
the site. (See Exhibit "3" for Alternative Access Report)
0 11. Granting relief would allow access not otherwise available. This would not cause
substantial detriment to the public good and nullify or substantially derogate from the
spirit and intent of the Bylaw. Additional information from Attorney Joel Bard, Attorney
Michael Gerstein and Elmer A. Pease, II is attached as Exhibit "6'.
�I
5. Current property owners abutting the subject parcel have driveways or contiguous
boundaries for alternative access that fall within the 75' foot conservation buffer.
6. Due to the soils conditions as shown in Exhibit "1", other access to the property is
C�
unavailable.
7. The unusual shape of this parcel, fronting on Dale Street in two locations of 50 +/- and
186+/- feet does not have direct access as do many home that are already built. Direct
C
access in the neighborhood as they currently exist affects the subject parcel not generally
affected by these abutting properties.
8. A literal enforcement of the Bylaw would unjustly create a legal, equitable and financial
Lam'
L'I
hardship as no reasonable use could be granted without benefit of access through the
current westerly access point.
�I
l J
9. There is no filling of wetlands proposed or approved for this access. The Conservation
Commission determined that there would be no adverse impact as a result of this project.
The Conservation Commission, their engineer and the Administrator thoroughly
reviewed and approved this project. The Order of Conditions are attached as Exhibit "4".
10. The Planning Board/Special Permit Granting Authority (SPGA) approved the Definitive
Subdivision Plan and the required Special Permits for this project. The Board, their
engineer, Department of Public Works and Planner thoroughly reviewed this project and
determined there would be no adverse impact. The Conditions of Approval and the
Special Permit are attached as Exhibit "5".
0 11. Granting relief would allow access not otherwise available. This would not cause
substantial detriment to the public good and nullify or substantially derogate from the
spirit and intent of the Bylaw. Additional information from Attorney Joel Bard, Attorney
Michael Gerstein and Elmer A. Pease, II is attached as Exhibit "6'.
�I
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JAN 3 b 1993
CASE #
TOWN OF NORTH ANDOVER
ZONING BOARD OF ADJUSTMENT
OWNER'S AFFIDAVIT
I, the undersigned, owner of property located at Dale Street and identified as Man 37B -
Lot #1.
do hereby authorize MPG Real Co oration and its representative;
11 O1d Boston )adjewksbury.MA 01876
to make the following request with respect to the above-described property: Any and all requests
for the approval
of Berrington
Place an 8 Lot subdivision with roadways and all improvements
as
shown on
plans prepared by
Allen & Mjor Associates Inc of Woburn. MA as maybe
required
by the Watershed Protection Bylaw and the Planning Board Please refer to Special Permit
application and accompanying documentation for submittal of this re nest for ZBA consideration.
R. Ashton & Gwendolyn C. Smith
Signature w rustee Geoffrey Smith
15 Driftwood Dr. North Bradford, CT 06471
Address
January_ 23 1998
Date
nava«
- "rJt -_Lr t,ttcZ11EiN6HULb ItL-1-S08-,S(2-0-Jb0
F411!
r
is
I`iaLl 11 y i� NO . UU—
vet �rrt�r••. � F' .02
i� t L'141;X, C�;RNJtA-IIwh
..'•' a eorlwcn
.an duty ct:atliaht-i O,.Jee the tesla of Commonwealtr s
of MaeaehuAeLt5
J •,+,: la.lat Its arod plot of but4x AS at a,ea t. tlf;Lun
f.
t ' M
tyfiddle sex C.:+,n,r M%%`46J9etu. (:,r a:
widcraaw paid,
$.
Ashton Sm1Lh rod ::uendule'r. C, Smith, Husband and
` enlnCL 1ty the Enti-rc ry
of North Andover, tsatX CCunly, D'ea a sell(, ae t%:F M'al autt:(s:a taornnt:f
U•Ot6vs" 1w0 certnin norctla of land w,iluated ii; Unlc SCreet in.
,. ani•! ,icrtit :,ndovcr, bounded and dencribcd as .,nIIoI
Ya: C.I. NU. L Beginning At Clic Horthwtatlrly corner ot, lan,l ny%,
or lonacrly itillncr, being; chow(, pa Luc Iwo. 17 A on••rian ct
Appleton .states, :iale. Street. North ..ndvver, NON%;. uwtler, Lant«rr+
Corp.. Ua&lnver, Ralph U. Braceour, Ttarch 27, 11157'• tc,]d plan
being reeordod in. ttuChorth District 01 ,.aaex fte$iatry ": ;K:tds as
Plan NO. 5442; Chance runninL Northerly by a ctont wall end ].ah(;
of CadOgnn seven hundred forty -flour and A:or, ur• lrss to
an iron nape at land of Leland As shu•an 0n ,afr< hLnn; 1 wince, runninf.
Easterly by a stone wall formirl. the Northerly bounf.nr'v of i.ot Nu. 2U
on said plan and by n ditcl: forr.ing the t:ol-0,vrl.y boundary of Lot:,;
No. 21 and 22 on said plan* the tee Centinuint; ty L(tl.d o:' said l .land
az shown on "Plar, of Land in porta Andover 1;dV.A nutted by I)an`tl
E. 11oAan Jr., ?ebbttnt•7 29, 19.`;6" recorded L the glomi, utstrtCt of
hssex Ragistry of Det -da as rlan two. 5200 A total diattinre ur 2,025
feet -more or Lcas.ro tete .or•ttmr of tt at:one wall at int+,( of Rubcrt
Mfl1tr an shown on eaid last. +waned plan; tile" u: `ur„In snd running'
Suutherly and by said land of +A.Ller in pnrt by a stone wall,
Itundred ninct.y-one anti 46/1tK: feet to o't'ht•r 1,.n,t of Itobart Hiller
oK7 as ahown on eaid last panted -Lan; thence running kcaterly by Lhc
Nurt:lcrly boundary of land vt ilobcrt 1_iller, t•hilie Millar, Ultitc
and l:in,rt]c1A as'shown on esiJ 1,1et nuncdivc nantlrcd eiiittY
auJ 91/lW fact to a otunc wull Ac la„ti al ]:alu,arn on said filen:
t,t.!nct: vurnini; and rennin! Narnc�t•ly by t:te scone wnll 1,116 :a::d of
SontJor•n, one hundred L'wchty-nine and r.0/1,.;; feet t6a 1.ortacuutcrl
c-rttcr of said Sanborn lana, al:
aL•rw1 on 0001 p:ut c.,eucc turnln•;
end running aeaerrLy by tris 11orrtcc.rly Lu.ut•itwry yr ltnrt or ha,lyo—n and
Perera as shown on said alar., tw, hundred c,sntV three rust tc• an
i, fro- ;)Lpe at the Uorer,weszcrfy corner asid
rorr,lt4: arid r:Jnnin;L Zouthcrly :;y the ,leaterly lint ui' said tarerr. :at
At ctw.At on plan recorded IN,;. 3442 rcferrid to auuvc, a di.etance. of
fuu- tauhlred thirty-,,ine oc,d ; lW f.: t... .J,J: iuroe: s eno�•t, ,m
0,1'.c last na:oed plan; L., n4c rte:mitt, rt`cut at r. E.,; ;,y a slant veli
anti f!al.r �trect as shown or, aai.d l;,:l :.cured plan :r. ;c:n
ml cvc.rset
easuring forty-eevu” u„tt 74/l;o i'ecc, fel2r n'%/],tet west
tRil•ty il,t and SUAJU mitt' rind fists ft:tet trchtctiv�ly to .!�„ti,nc
bound ma 41101- en said pLan; t.,enec to:nine, er,d •t,t:t!fi,•• t:t a Fener&_
tiorth,rly dirtctiva try the, ci;rve of a pran.+sed road as+a! ov; ul: saki
tAtir. l- two eouetea, metrsurint ;.wept/-si ar,L G >,/1<�, feet a.t,', tru•cc
hundred :•hire/ slid Oo/l:v feetto a .lctie found sr tt„
r1'nrtl,csst•ir`:•
corner of land f Antireocr, as ,ttoln on SOtA UFt nantid plan; r:ka'1:Cc
t'urr,ilt; 'and runr.inti 4e—tterly by tile'
1,� o: +_.,nd of
Andresen, I:irl:ham anti }lona ch,'rt IntnCred at,,' rorty -one fee: to .an.i
ui eufcl grantee mpr•:4d r..A. ::mltl, on ase ,1 un; t,err_z .vrnin,I and
rjnnin,• Eortlterly by land of ceid CrFt,tee nin, t;-r::t t vL Wore
or Ices to the Nortneitaterly e,Dr%cr of asid Snfth :nn4; caence
s.;•r• turrtln:: arc rut+ttin•1 ,icstcrly by Land oL 5:1(:1• :,-, at c'. o:. said Alen
t Cut :,urldre6 cf tit
b y-eig11E er.d LS/1,.0 Ire[ tc a P -cur, tt•,rur tu:•+,1-c:
and runnir._1 in n Southwe4t<rly directl,n't,y a curve ::ovin: c .-ndlvs
o: tfr,•rc hundred seventy feet, a dit,tarCc tunerec eighty-c_o
coil v_,'l.,w stet t„ e art li ;,alt it, a ■tent u�il a, Hole ,tract as
1,\•
shorn on SaLd plan: [nonce turnir.b a1+d rut,nine :Icrtnw_ctcrly t�j
a atone uai: ar,e_ DaleStreet of�l,ty C;ve feet c,urc ,r Lcss a scant
baud fa the JouthL•a4terly corner of Lot bo• 17 A as av�-: nsid
•,len; tler.ee �n it reneral Hortllo,ute-iv dLreetio❑ Ly. C:,. `ovthznaLcrly
t boundvey of Lot 17 A in e!Ir4e COVI'ati rn,„turrl:g U,ivty-one ane 4;"IW
• Leet., nir.ety-four g -,rt ..3/LC•U feet n,.1 one nunered t• lrt: v
• , And
L ;5/:LU feat I- the Nurtlteoaterly carer of sol,? Let !'A SS 87.0-1
A(X..
9 j
1$7
w
1
1
El
ER3TE1 HOLb T=L J-E'l;t-:7?- 08
Elm `.i
wnta 1� a: 1J :,u I�a.t1Ct� F'.
+,+•
maid rinn; ti.cuee turniltg and vulutfnL lorttt�tslctly Dy Lot 17 A
rmid
utt
roncaltning14111 t30eacrealitendmoresur ix sleeeo� 1W feet to the (.eine o'. begllttllhg.
PARCEL II be ate. shown As Lot Ila. L4 ue tale Saue4rly side of
Streak er
i 8 8
Ualc
n cit North Andover cplen entitled 'Plan Land iI+isl
Andover Naas. owned by unliel. L_ lsoflan
:
[t Jr. ';ebruary 9, 1956. Ssicl _
pLan beltlr. recorded in said rcl1srry as plan 110.
t
heftyo 12vGex
; more art'icularly bounded nite. dcAcrilxd as t2-, 11;, aged {tremia
;'.�.
of
HWT1tUAST,{'Rl.Y two hundred fifty feet more or :e.0 tr:
ay Ale Stteeti'
3JUTIMASTi3?LY one hundret sixty eight feet .f
I
More or leas lay Lot
Nu. 1.5 un said plan and ~k
i'
aowrliVes U(LY two Itun:tred twenty wn feet mono or Leas by land
or Lurmcrly Nl•.i Eng 1 uuv
and Power Company ns (shown on
said plop.
i
Cutttainine 11,5.7u sq•.lare feet more a iLss according to said plan. `Y
'
be -ink part of :he premirea cvnveycQ Cu chc.:raotur Corporatlun �
by decd of Usniel k,
t,ogau Jr. et ux dated April 16, 1•l 56 rec0rdecl
in aald Iecglatry, tioe.b :151 1`a4Lje 3::6.
SAirl nrealsea art eotn•eyed subjecL to a•taking by the L•satx
County Cotwltietiuners for Lje lclocstivu
of 1/A 1e 31:rcct, recorded in
6A:d kegietry, look ::9a, YA�tc 435, It, b4; far
as :lie same affects
wi.tltin described Ilrewiaet, U.c
j
licaning and int.etading, and" .teonveyit•p to the gr•ntlLeee of
la
all the nd 1t: North Andovtr
i
acby
.Ivw• tanding o: record !n the name of
Lantern Coryloraci..n wltetitcr or Oct the is
i
*A -K tneludad within LI1e
boundaries ,.f tilt Above ttcaerited pareeLa.
Said 131•ttafaaa are conveyed subject to the taxes fl•r. the current
Vast- witiell rile j;tahLca& 1larcin
1
abajja:e u:tJ aLree to -.ay.
i
f
i .,% r�: to :he
yrdnter cuTpur tion -Mel-with con+said grantve; any
and all rtdaaagnt
abcvto
..h1::h It (nay h.,•ie)CSJit of the Taking ereferred to abe.
referred
j
ii• 1..Pear•rnl 'Rctcr:un tilnrnpa `1 ,•:•cbl rt,. I••.•1 h.z lt: 3Untp1 .-
in $:tilt ,.i S._JS.1(1_._..
i
.
Of.l \.:,1 e: ..1 a...1.: �•I:till 4.1 t:Li 1•�..: .' �.••, 1:..:..: :_ V.: ..
;nttl'u...... at
fit miiltrflJ3 w4 rrOf, ua said Lr.::1t:1: ;Gulcxl,r,cN '
_ 6aa uused its eotpors+r seal to bt 6e.e:a adF.lud and t6eu pretee:j u be shard. ackaowkdeed and :
deli—td it, i:rnttrcand WWI( ty Gaot•Z•e N. Ka.heaon, Jr.
'fvc a surer
iu I'ree(derlt and, Aertloau;yauu+oetetd, lila tweet:y-"ftl• "•tri
,,•
I•
flay of - N+ireh In the year une tlw,und nl,e M,a;red trd a i xty
. 1
51 «! and aWet1 In �.w
[n [•reaves of
1
IAt71 LR1: CtiRi'J_f i.:.uN
A X
rt;e_dent and 11'ret6cr r
v iJf aRldlitOntlltt117i7 ni l�nAa:trlula t77; �
EAatx tt
?t:rch 25. 14 bU;
r.
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PD Associates, LLC
Real Estate Consultants
1600 Candia Road, Suite #7, Manchester, NH 03109
January 25, 1999
Planning Board
Town of North Andover
30 School Street
North Andover, MA 01845
Attn: Amy
Dear Amy:
Telephone #:(603)641-8200
Facsimile #:(603)641-8882
In my conversation with Kathleen this past week, she requested that I send her an updated
abutters list, which I had signed by John Speidel in the Tax Assessor's Office. I have
also enclosed the self-addressed stamped envelopes for the notices pursuant to her
request.
She has informed me that I am on the March 16th agenda. If you wouldn't mind, I would
appreciate being notified of the approximate time and position on that evening's agenda.
If you have any further questions or need any additional information, please feel free to
call.
Respectfully,
7
(mer A. Pease, II CPM, EA
EAP/sp
Encl.
1 =^ JAN Z G 1�°�
►;
Page 1 of 4
a.r
Dale Street Abutters
List
...................•e.
Subject Property: Map 37B Parcel #1, R. Ashton Smith, Estate, Dale Street, 30.92
Acres
Map Parcel
Name
Address
n
U
37B 8
Donald C. Hillner
c/o Donald and Maria
128 Dale Street
6&7
.9— Ashton R. Smith c/o
15 Driftwood Lane
Geoffrey Smith
North Bradford, CT 06471
�I
5
Gregory E. Garbick and
Kathleen
190 Dale Street
4
Daniel Takesian and Joan
Ellen
198 Dale Street.
3
Agnes E. McCollister
206 Dale Street
D24
f James G. and Sandra J.
Timmons
205 Dale Street
D23
Charles R. Fiorino and
Ellen L.
201 Dale Street
j
D
22
Augustine Salvetti and
Grace R.
185 Dale Street
21
George A. Boutselis and
r
Antonia
90 Appleton Street
Cj
27
10 Stephen A. Hay and
Carol Eleanor M.
100 Appleton Street
a32
1( James E Phelan and
Ellen M.
97 Appleton Street
a33
`k,' William W. Kelly
and
�
Colleen Callage-Kelly
95 Appleton Street
O34
Daniel
W. McConaghy and
Adele
59 Appleton Street
[�
20
Lambert Revocable Trust
. Clementine C. Lambert Trs.
58 Appleton Street
C
Page 2 of 4
Map Parcel
Name
Address
37B 19
r
Terrie-Ann Cahalane
153 Dale Street
18
Vr
Moynihan Family Trust
C/o Mary R. Moynihan
P.O. Box 273, 141 Dale St.
North Andover
17
[`1'
Philip G. Hunt &
Madelyn M.
133 Dale Street
16
James A Anderson Jr. &
Isabel D.
125 Dale Street
15
Harold R. Lynch &
Lee G.
115 Dale Street
9
Joseph B. O'Connell &
Carol
100 Dale Street
14
Harold R. Lynch
115 Dale Street
65
Town of North Andover
120 Main Street
l
10
z,
Shelly S. Shuman
130 Marbleridge Road
11
Eva E. Vielgolaski &
Thomas R.
116 Marbleridge Road
12
Michael A. Holland &
.
Kelley L.
100 Marbleridge Road
64
James G. Timmons
205 Dale Street
37A 13
Jean I. Gray I, Lt., &
�-
S.M. & G.J Lafleur
96 Marbleridge Road
34
Gary A. Kelloway &
Janet A.
136 Castlemere Place
45
Johaine Realty Trust
P.O. Box 246, Andover MA
John A. Sammartaro, Tr.
01810
46
- Barbara Grasso
104 Castlemere Place
47
James E. Rice &
Corine G.
96 Castlemere Place
Page 3 of 4
Map Parcel
Name
Address
37A 50
"r Connecticut Financial, Inc.
P.O. Box 398, N. Andover
37
Town of Andover -----Parcel Not found
64 12
Jan Bajan &
Stephanie
220 Dale Street
13
l Edward J. Morgan &
Jacqueline M.
228 Dale Street
28
Christine M. Melvin
234 Dale Street
19
Michael W. Bubar &
Virginia L.
240 Dale Street
30
Frederick R. White
242 Dale Street
27
Richard A. O'Toole
244 Dale Street
31
Harold Morley, Jr.
256 Dale Street
32
Harold Morley, Jr. &
Julia C. Morley
256 Dale Street
23
Harold Morley &
-Julia C. Morley
256 Dale Street
62
Fred P. Bernard &
Elissa A.
10 Bear Hill Road
21
Herbert R Skane &
Arlene E.
11 Bear Hill Road
110
Frank J. Lazzarino &
Carolyn
477 Bear Hill Road
15
Linda A. Cagle
287 Dale Street
77
Bruce G. Watrous &
Coleen M.
275 Dale Street
76
Stephen Querzoli &
Lynne M.
259 Dale Street
Map Parcel Name
64 14 James W. Goodwin &
Sandra A.
8 Peter J. Piantidosi III
5 Stephen H. Taney &
Cecilia Feeney -Taney
24 Fredrick J. McCarthy &
Maureen W.
26 E.C.W. Trust
Edward J. Welch, Tr.
25 P&M Realty Trust
P.A. & M.W. Bryant Trs.
33 David C. Rand &
Frances J.
16 John P. & Cecelia E.
Sangermano
34 Danahy Family Trust
Donna D. White, PE" &
R.H. Danahy
64 Town of North Andover
9 Town of North Andover
136 Stewart 1996 Realty Trust
Lora E.S. Stewart Trs.
69 Patricia A. Grimm &
Christina L. Klein
70 Robert J. Kingsley &
Joan L.
37A 27 ( Howard L. Kramer &
Julia O.
28 George W. Desmet &
Leah M.
Page 4 of 4
Address
299 Dale Street
1 Millpond, North Andover
323 Dale Street
357 Dale Street
24 Prescott St. N. Andover
300 Dale Street
2.80 Dale Street
268 Dale Street
73 Pinehurst Street
Methuen, MA 01844
12 Carriage Chase
N. Andover
149 Coachman Lane
135 Coachman Lane
115 Coachman Lane
125 Coachman Lane
0
COMMONWEALTH OF MASSACHUSETTS
REQUEST FOR REPETITIVE PETITION APPROVAL
By Applicant -MPG Realty Corp.
REQUEST FOR REPETITIVE PETITION HEARING
NOW COMES, MPG Realty Corp., the applicant with an address of 11 Old Boston Road,
Town of Tewksbury, Commonwealth of Massachusetts, 01867, by and through its
Owner's Representative, Elmer A. Pease, Il, PD Associates, LLC, Real Estate
Consultants, and requests a hearing regarding the denial of the Applicant's request for
finding of applicability and/or variance application by the North Andover Zoning Board
of Appeals. The applicant requests that this Board grant the Repetitive Petition Hearing
pursuant to Section 10.8 of the North Andover Zoning Bylaw and M.G.L. ch. 40A, §16
and in support of its request the applicant states as follows:
1. This Board has jurisdiction in this matter pursuant to M.G.L. ch. 40A, § 16 which
provides for this Boards review of the Zoning Board of Appeals decision on
applicants request.
2.
The Applicant is the Owner's Representative for R. Ashton & Gwendolyn C.
Smith c/o Trustee Geoffrey Smith of 15 Driftwood Drive, North Bradford,
Connecticut, 06471 which consists of a parcel of land of approximately thirty-one
and fifty-eight/one hundredths (31.58) acres located in the Town of North
Andover in the Residence 1 District and which has frontage by way of two
accesses on Dale Street.
3. The subdivision was presented as the Berrington Place residential subdivision on
Dale Street and identified as Map 37B, Lot #1.
4.
5.
A
7.
A proposed eight (8) lot residential subdivision, (seven (7) buildable lots & one
(1) conservation lot), was first brought to the Planning Board for consideration
and comment in 1997 by the Applicant. Since the Fall of 1997, the Applicant
worked diligently to obtain the subdivision of the Smith Property. The Applicant
and through its Consultant and Engineers, have represented the Smith Property
before the Planning Board at all hearings on the proposed subdivision.
The current status of the Applicants request is for subdivision of seven (7)
buildable lots & one (1) conservation lot for the purpose of building single-family
residential homes. The subdivision would leave approximately twelve and
ninety-five/ one hundredths (12.95) acres or approximately forty-one (41%).
percent of the property in conservationf,-open space. This parcel would be deeded
to the Town of -North Andover or one of its committees. The subdivision merely
seeks to allow the Applicant to utilize a portion of the property for an up -scale
single-family residential home development consistent with other homes in the
area.
The Applicant concurrently with the Preliminary and Definitive Subdivision
application process submitted a Notice of Intent to the Town of North Andover
Conservation Commission. This application was also submitted in 1997. The
Applicant and through its Consultant, Wetlands Scientist and Engineers, have
represented the Smith Property before the Conservation Commission at all
hearings on the proposed subdivision.
During this period of time with both the Planning Board through the Definitive
Subdivision process and the Conservation Commission through the Notice of
Intent, the Applicant and its representatives provided written and verbal testimony
9.
LJ ; that the proposed subdivision was properly designed and conformed with the
l�
spirit and intent of the Town of North Andover Zoning Bylaw, Rules and
Regulations Governing the Subdivision of Land, and the Wetlands Protection
Bylaw.
8. The Town of North Andover Planning Board and through its Planner, Kathleen
Bradley Colwell and review engineer, John Chessia, PE and the Conservation
i
Commission and through its Conservation Administrator, Michael Howard and
review engineer, John Chessia, PE were satisfied that the Applicant met its burden
a
on designing a subdivision that complied with their respective regulations.
9. The Town of North Andover Planning Board granted a special permit from the
requirements of the North Andover Zoning Bylaw, Section 4.136 (b) (c) (d) of the
10. The Town of North Andover Planning Board granted approval of the Definitive
Subdivision Plans for the proposed subdivision for 7 single-family residential lots,
0 with the applicant agreeing to dedicate the conservationP arcel to the Town. The
I Planning Board voted to approve this Definitive Subdivision on April 21, 1998. It
was signed by the Chairman on and received in the Town Clerks office on April
�I 22 1998.
3
Watershed Protection District so as to allow the Applicant to build a roadway,
detention basins
waterline and within the non -discharge, non -disturbance and
[�
conservation buffer zones. The Planning Board voted to approve this special
permit on April 21, 1998. It was received in the Town Clerks office on April 23,
1998.
10. The Town of North Andover Planning Board granted approval of the Definitive
Subdivision Plans for the proposed subdivision for 7 single-family residential lots,
0 with the applicant agreeing to dedicate the conservationP arcel to the Town. The
I Planning Board voted to approve this Definitive Subdivision on April 21, 1998. It
was signed by the Chairman on and received in the Town Clerks office on April
�I 22 1998.
3
11.
12.
13.
14
The Town of North Andover Conservation Commission granted approval for the
Applicants Notice of Intent on December 17, 1997 and issued an Order of
Conditions for the subdivision on January 7, 1998.
On February 12, 1998 the Applicant submitted an application to the North
Andover Zoning Board of Appeals for a determination of the applicability of
Section 4.136 .3(d)(ii), and though Applicant questioned the applicability of this
section, made such application to the Zoning Board of Appeals at the request of
the Planning Board.
Upon notification from the Acting Chairman of the Zoning Board of Appeals that
the application was confusing, The Applicant agreed to withdraw the application
and meet with members of the Board to determine better language for resubmittal.
The Applicant, Elmer A. Pease ,II, its consultant, the Planner, Acting Chairman
and a member of the Board met and determined more appropriate language the
Applicant could use to move forward with the submittal of its application.
15. On March 18, 1998 the Applicant resubmitted its application to appear before the
Zoning Board of Appeals to address the issue of applicability and if so
determined, to request a variance for relief from 4.136.2(b) Table 1&2, 136.2(f)
and 136.3(d) as stated on the application. Applicant inserted additional
information into the application as well as provided a six (6) Exhibit Booklet for
the Board to makes its consideration.
16. The hearing was held on April 4, 1998. After presentation by Applicant, its
Attorney and Consultant the Board would not honor the Applicant's request for
the determination of applicability of 4.136.2(b) Table 1&2, 136.2(f) and 136.3(d).
The Board denied the variance without consideration of the applicability issue or
the evidence submitted with the application or testimony given at the hearing.
17. The Applicant has filed an appeal of the Town of North Andover Zoning Board of
Appeals decision with the Commonwealth of Massachusetts Land Court. This
appeal is still in litigation.
18. The Planning Board at its April 21, 1998 meeting discussed and indeed
considered including the roadway within the 75' area as part of the special permit
based on its applicability under the non -disturbance buffer zone. The majority of
the members of the Board decided to exclude this section out of the special permit
and in its written approval, required the Applicant to go back to the Zoning Board
of Appeals for the Variance. It was the direction of the Town of North Andover
Planning Board to come back for a repetitive petition request once the plans were
signed and recorded.
19. A Repetitive Petition request was made to the Planning Department on April 22,
1998, however, was subsequently withdrawn as an appeal was filed regarding the
approval of the Definitive Subdivision.
20. The Planning Board signed the Definitive Plans on March 16,1999. This was done
prior to the Repetitive Petition hearing held on that same evening.
21. At the request of the Planning Board at the Repetitive Petition Hearing and the
Director of Planning and Economic Development on March 16, 1999, the
Applicant was to provide additional information to the Board in support of its
position.
22. The Applicant through its Consultant researched the Properties within the
Watershed Protection District at the Town of North Andover's Assessors office to
5
a7
determine if any undeveloped parcels have the same unique configuration or
shape characteristics. The Watershed Protection District comprises an overlay
district of approximately 15-20% of the Town of North Andover. No
undeveloped parcels were found that provided the same unique access
characteristics of a pork chop shape lot as the Subject Parcel.
23. The Applicant through its Consultant researched the approved subdivisions in the
Town of North Andover at the office of Planning and Economic Development. A
list of approved subdivisions was provided by the Planning Department covering
a period from 1992 through 1998. For the purposes of this request, a review of
subdivisions from 1994 through 1998 were researched. A total of 28 subdivisions
were checked for their location in the Watershed Protection District. Only two
were found to be located in the District. The Leland subdivision (1994), however
was submitted and approved prior to the enactment of Bylaw. Country Club
Estates was subdivided in 1998 as part of a consolidation and resubdivision of
some existing lots. One single lot showed access along a wetland, however, no
evidence of a variance was found.
24. There were no parcels or approved subdivisions in the Watershed Protection
District that have the same unique soils impact characteristics of the Subject
Property. The Subject Property as stated at prior Planning Board Hearings, has
bordering vegetated wetland (BVW) as determined by the Conservation
Commission located to the Northwest, North, Northeast, East, Southeast, and
South. Wetlands Preservation Inc. (WPI) found additional wetlands to West of
the Subject Property on an abutting parcel.
C
t..s
F125. The property Access is from two narrow strips of land. The secondary access
strip extends from Dale Street to the Subject Property a distance of approximately
Ll �
Three Hundred Sixty (360') feet. This secondary access point is covered with
U trees and brush and is bordered by wetlands the entire distance along its easterly
side and over half of its westerly sideline. The primary access point, which is
currently used for access via a driveway, is partially cleared and is only bordered
by wetlands between stations 1+40 through 2+40, a distance of approximately
100 feet.
26. Further, and more importantly, residential homes surround the Subject Property to
its south and west. The Subject Property has neither frontage on nor along any
residential parcel to access its property. These residential lots that are existing
lots of record are all developed with homes along Dale Street and Marbleridge
Road. Further, no possible access is available along Castlemere or Carnage
)j)4.
Chase because of the beaver pond. An alternative access study was submitted to
the Planning Board at the request of the Planner. A copy was also provided to the
Zoning Board of Appeals in the March 18, 1998 submittal for a determination
and/or variance.
27. The topography for the property is also quite unique with grades significant in
many locations that create this band of Bordering Vegetated Wetlands (BV W) on
three sides of the property and on both sides of each access. The grades as shown
Eon
the plans prepared by Merrimack Engineering and Allen & Major Associates is
quite clear that topography and slopes are a natural occurrence that create this
aunique
characteristic. The low topography that create the wetlands to the
E.
Northwest, North, Northeast, East are extremely large and bordered by standing
L.
water. This will not allow any access to the upland portion of the property. The
topographical features to the Southeast and South along the accesses create low
areas designated as wetlands. More importantly, these grades are quite steep with
changes in elevation of between 8 and 12 feet. This creates existing grades in
excess of 15-20%.
28. It is the uniqueness of the shape, soils, and topographical features of this property
that require the Applicant to request a variance. Applicant has clearly proven
verbally and through testimony both verbal and written by its representatives that
this parcel in entitled to relief.
29. The Applicant Made the Town of North Andover Zoning Board of Appeals aware
Eof
these characteristics during its hearing on April 14, 1998. The Applicant
aproved
through its application, submitted exhibits and colored presentation boards clearly
these thresholds. Applicant and its representatives further testified at the
hearing in reviewing the plans that the unique shape, topography and soils of the
Subject Parcel clearly showed a hardship. Further, the Owner through its Trustee.
clearly showed a financial hardship having submitted a letter to the Board and his
C'
subsequent testimony at the hearing.
0 30. The Applicants Attorney clearly showed that the granting of the variance would
not derogate from the spirit and intent of the Bylaw as this property is unique as
Estated above. The Watershed Protection District is an overlay District that covers
approximately 15-20% of the Town of North Andover. Much of this area is
zoned for Residential Use. Granting this variance would not "affect generally the
zoning district in general" as it would continue to be used for residential single -
Efamily homes.
E .1
31
The literal enforcement of the Bylaw would create or "involve substantial
hardship, both financial and otherwise, to the petitioner or applicant" because of
the unique soils, topographical and slopes of the Subject Parcel. There were no
other parcels or lots within the District that are affected as is the Subject Property.
Granting relief would not cause substantial detriment to the public good, as the
property would continue to be used for the development of upscale homes having
no negative impact on surrounding property values. Granting relief would not
nullify or substantially derogate from the spirit and intent of the Bylaw as this
Section of the Bylaw does not affect all the accesses to existing homes in the
district, subdivisions approved since 1994 (as stated above) and for the 80-85% of
property owners in the Town of North Andover not governed by this Bylaw.
32. Applicant has provided plans submitted to the Town of North Andover Zoning
Board of Appeals and the subsequent final Definitive Subdivision plans approved
by the Town of North Andover Planning Board. The two sets of plans show
specific and material changes relating to revisions requested by the Planner,
Kathleen Bradley Colwell, John Chessia, PE, the Town's Review Engineer, the
North Andover Department of Public Works and various members of the
Planning Board at its meetings held on April 7, 1998 and April 21, 1998. A letter
was sent by Elmer A. Pease, I1, the Applicants Consultant to the Planner,
Kathleen Bradley Colwell addressing these comments on March 4, 1998. These
comments were made after the submittal of the Zoning Board of'Appeals
application on March 18, 1998. The actual plan changes were not reflected in the
plan presentations made at the Town of North Andover Zoning Board of Appeals
hearing held on April 14, 1998. The final plan changes were made for the April
33
34.
35.
21, 1998 hearing for final Definitive Subdivision approval of the Town of North
Andover Planning Board.
In the Applicants request for a Repetitive Petition Hearing pursuant to the Town
of North Andover Zoning Bylaw Section 10.8 and M.G.L. 40A, § 16, the
Applicant has provided to the Town of North Andover Planning Board through its
Planning Department a list of specific and material changes to the plans and
though its additional evidence to warrant consideration of its request to re -petition
the North Andover Board of Appeals.
The Applicant respectfully requests the Town of North Andover Planning Board
find that the Applicant has proven its case that the Subject Parcel has unique
characteristics owning to soils, topographical features and slopes as denied by the
Town of North Andover Zoning Board of Appeals.
The Applicant respectfully requests the Town of North Andover find that specific
and material changes have occurred to the plans to warrant a vote by this Board to
allow the Applicant to repetition the Town of North Andover Zoning Board of
Appeals.
Respectfully Submitted,
MPG Realty Corp.
By its Owner's Representative
Elmer A. Pease, II
PD Associates, LLC Real Estate Consultants
1600 Candia Road, Suite #7
Manchester, New Hampshire 03109
Research Location:
Research Criteria:
Lot Configuration Comparison
Town of North Andover
Assessors Office
Locate undeveloped lots of Comparable shape, configuration
with long narrow access in the Watershed Protection District.
Map No.
Lot No.
Lot Size
Condition
Type
Comments
90C
N/A
N/A
N/A
N/A
No Comparable Lots
103
N/A
NIA
NIA
N/A
No Comparable Lots
104C
11
9.80
Developed
Res.
Used as SFH*
27
9.10
UnDev.
Res.
Part of Subdivision
36
5.60
Developed
Res.
2 Homes, 6 Structures
62
N/A
N/A
NIA
N/A
No Comparable Lots
63
13
3.10
Developed
Res.
Used as SFH*
42
3.70
Developed
Res.
Used as SFH*
64
10
6.01
Developed
Res.
Used as SFH*
35
1
3.12
Developed
Res.
Used as SFH*
32
12.70
Developed
Res.
Used as SFH*
48
3.77
Developed
Res.
Used as SFH*
101
3.13
Developed
Res.
Used as SFH*
102
3.00
Developed,Res.
Used as SFH*
104
3.77
Developed
Res.
Used as SFH*
36
1
87.62
Developed
Res.
Used as SFH*
3
62.37
Developed
Res.
Retirement Community
37A
N/A
N/A
N/A
N/A
No. Comparable Lots
37B
1
31.58
UnDev.
Res.
Subject Property
54
2.82
Developed
Res.
Home, 2 Structures
37C
14
10.43
Developed
Res.
Home, 1 Structure
16
6.49
Developed
Res.
Used as SFH*
18
7.40
Developed
Res.
Home, 2 Structures
37D
24
N/A
Developed
Comm.
Cemetery
97
5
6.16
UnDev.
Res.
SFL*
74
NIA
NIA
N/A
N/A
No Comparable Lots
*SFH-Single
Family
Home
**SFL-Sin
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Fit
-R PD Associates, LLC
Real Estate Consultants
704 Londonderry Turnpike, Auburn, NH 03032
March 4, 1998
North Andover Planhing Board
30 School Stroet
North Andover. MA 01845
Ann, Kathleen Bradley Colwell
RE: Dale Street Definitive Subdivision -Map 37B/Lot 01
Dear Kathleen;
Telephone #:(603)611-8200
Facsimile #:(60.1)641-8882
Pursuant to your request and the comments made by the various board members, town review engineer,
planning department and the DPW, please accept this letter as the applicants response_ 1 have prepared
this letter in much the same way as the letter 1 submitted with the application.
Engineering Comments:
Sheet # or other
1.
Names of Owners
1 -Cover Sheet
2.
Ownership of 86 sf piece Wong Dale St.
2A
3.
Show existing grades on profile at 25' offsets
48 & 4C
4.
Permanent Benchmark (Rim Elev-Dale St. SW
48
5.
Reacrve Strip -remains
Unchanged
6.
DPW Street Trees
Next Section
7.
8.
Lot Line reconfiguration per fax to John of 2-20-98
Water facilities
2A
Next Section
9.
Sewer Facilities
Nett Section
10.
C13 -3A to be moved outside drive
3A `.
CDPW
Comments:
1.
Tapping Sleeve &. Valve notation
313
2.
Eliminate sewer drops into SMH's
4B
3.
Insert symbols at PC,a & PT's
2A
4.
Remove Sidewalks
3A& 3B
Planning Comments: 2.20-98 meeting / Issues letter
1.
Defined the parameters of what the applicant is looking for
Completed
a
2.
Anal within the Non -Discharge Zone by Special Permit
Submitted
3.
Non -Disturbance Zone by Special Permit
Submitted
4,
Conservation Zone -Submit to ZBA
Submitted
5.
WPI do AIM letters on Watershed
Submitted -Impact Study
6.
A. Recommendations -leaching pits move outside S 0'
Completed 3A
7.
B. I.,awns-outaide 100'
Completed 3A
8.
C. Detention Basins- all outside 75'
Completed 3A
(�
9.
Zoning Board of Appeals clarification meeting
Submitted new App.
U
10.
Site Walk w/ Planning Board
Completed
I
Cc: Erik Heyland
Ken Grandstafi
Michael Gerstein
0
I
0
D
Planning Comments at the 2-20-98 meeting
I . Change note to reflect 250'400' Watershed Buffer limits Sheet t -Cover Sheet
2. Drainage under 136.B.ii under SP Submitted
3. Wetland Lines -Through RDA process Approval through NO] process
4 Floodplain reference- Not in FEMA Floodplain maps See attached sheet
5. Roadway width of 22'/ request to 24' w/ removal of sidewalks By Applicant
6. Remove sidewalks Completed Ref. 4C
7. All changes to be completed prior to Plan Endorsement Condition of Approval
8. Sprinklers -in all houses Sheet I -Cover Sheet
9. Permanent Boundary- move existing split rail fence 75' buffer Shown on 3A
10. Reset stonewall at entrance Det. Basin A-7 3B
I think I have addressed all the issues presented and would be happy to answer any questions you may
have. I really appreciate the assistance in getting the information prepared for the zoning Board of Appeals
and setting up the meeting on the 25* of February.
Respectfully submitted,
Elmer A. Pease, 11 CPM, EA
Owners Representative
I
Cc: Erik Heyland
Ken Grandstafi
Michael Gerstein
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a:I b. The certified decision has been recorded at the owner's expense in the Essex County
y
Registry of Deed's indexed in the grantor index under the name of the record owner,
and noted on the owner's Certificate of Title;
C. If the Special Permit involves registered property, the decision, at the owner's expense
shall also be filed with the Recorder of the Land Court.
10.32 Temporary Permit
The Board of Appeals may grant a temporary Special Permit for use or occupancy permit for a period
of not more than one (1) year at a time, subject to a single renewal. Such permits shall be subject to
conditions imposed by the Board related to 'safeguarding the character of the district affected and shall
be processed in accordance with the proceduresprovided herein for the granting of Special Permits.
10.4 Variances and Appeals
The Zoning Board of Appeals shall have power upon appeal to grant variances from the terms of this
L` Zoning Bylaw where the Board finds that owing to circumstances relatingto soil conditions sloe or
P,
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.
Additionally, an appeal may be taken to the. Zoning Board of Appeals as provided herein by a person
aggrieved by reason of his inability to obtain a permit or enforcement action from -the Building
Inspector, by the Merrimack Valley Planning Commission, or by any person including an officer or
Board of the Town of North Andover, or an abutting city or town; aggrieved by an order or decision
of the Building Inspector or other administrative officials in violation of any provision of this Bylaw.
Any petition for an appeal above must be taken within thirty. (30) days of the date of the order or
decision that is being appealed by filing a notice of appeal, specifying the grounds thereof with the
Town Clerk, who shall forthwith transmit copies of the appeal to such officer or Board, whose order or
decision is being appealed, and to the Zoning Board of Appeals. Such officer or Board shall forthwith
transmit to the Zoning Board of Appeals all documents and paper constituting the records of the case '
in which the appeal is taken.
No petition for a variance or appeals shall be granted until a public hearing is held on the matter
by the Zoning Board of Appeals within sixty-five (65) days after the Zoning Board of Appeals
receives the petition from the Town Clerk.
2. The Zoning Board of Appeals must make its decision on a petition for a variance or appeal
within seventy-five (75) days after the date of the petition is filed with the Town Clerk. In
130
C
�} 10.8 Repetitive Petitions
J When 1) the Planning Board denies an application for a Special Permit; or 2) the Board of Appeals
denies a petition or a variance, no application on the same matter may be heard and acted favorably
upon for a two (2) year period unless the following conditions are met:
In the case of 1) above, four (4) of the five (5) members of the Planning Board find that there are
specific and material. changes in the conditions upon which the previous unfavorable action was based,
and describes such changes in the records of it proceedings, and only after a public hearing at which
such consent will be considered and after notice is given to the parties in interest.
In the case of 2) above, the Zoning Board of Appeals may not act favorably upon a petition which has
g been previously denies within a two (2) year period of time unless four (4) of the five (5) members of
the Zoning Board of Appeals find that there are specific and material changes in the conditions upon
which the changes in the records of its proceedings and only after a public hearing, held by the Planning
Board, at which consent to allow the petitioner to re -petition the Zoning Board of Appeals will be
considered and after notice is given to parties in interest and only with four (4) of the five (5) members
of the Planning Board voting to grant consent.
10.9 Withdrawal Without Prejudice
Any petition for a variance which has been transmitted to the Zoning Board of Appeals or any
application for a Special Permit which has been transmitted to the Planning Board may be withdrawn,
without prejudice, by the petitioner prior to the publication of notice of a public hearing thereon, but
thereafter be withdrawn without prejudice only with approval (majority vote) of the Zoning Board of
Appeals or Planning Board respectively.
SECTION 11 PLANNED DEVELOPMENT DISTRICT
11.1 Jurisdiction
The Planning Board may grant a Special Permit for construction of a PDD in the following district: I -S.
The Special Permit shall conform to this Bylaw and to G.L. Chapter 40A, Section 9, and to regulations
which the Planning Board shall adopt for carrying out its duties hereunder. Except as set out
hereunder , or in the Planning Board's regulations, or in a specific permit granted hereunder, the
provisions of the Zoning Bylaw shall continue to govern.
11.2 Purpose
The purpose of the PDD District is to provide for a mixture of land usage at designated locations at
greater density and intensity than would normally be allowed provided that said land usage:
a1. Does not detract from the livabilityand aesthetic qualities of the environment.
134
I
-- 04/23/98 13:11 FAX 308 8886888 - NORTH ANDOVFA
S. N rN
ti
+JrA
TOWN GF t4ORTH ANUOVCr1
nM/1�SAG1it,J6�TTS
L 1' HOARD OF APPEALS
I
RE;�,',':3
AYOWN OLCRK
NORTH ANUOVER
APR 21 12 of PR 'fib
Any ad,Neal shall be flied
dads of Mlog of this i filen
yaftlyt IZOtdayit ader the NOTICE OF, RECISION
in meoMce olUm Town Clerk. Property: bolo $t,, Map 378, I.00, (5ordngton Place)
The Boaro of Appeals held a regular meeting on'TueWay evening, April i4, 1948, upon the applitftton
of MPG Reaitlty Corp.. 11 Old Boaton Rd., Tewksbury. MA 01878, requesting a Vertrannaa for said
promises located at Dale St., Map 978, Lot #1, (Harrington Place), North Andavdw, MA from the
roquimmdents of Section 4, p4raoraphs 138.2 (h) & Qv): 138.2 (f): 138.3 (a), Of Table 1&2 to build a
roadway w4h ail required details witnIn Ihaj 75' consarvativn zune, in R-1 Toning Dlotricf,
The following members were present, Wallet F. Soule, Raymond Vtvenzio, Scott Karpinski, Ellen
McIntyre and George Ealoy,
The hearing was advertised In the Lawrence Tribune on 3/31190 & 4PISS, and all abutters were notified
by regular rnail,
upon a motion made by Walter Soule, who removed himself as stating chairman for this vote, aria
ioconded try o"rge EAtiey, the Boom voted to asny a Vorlance seeking relief from Section 4, P: 430.2
(h) A (iv): 136.2 (0:136.3 (d), to build a roadwRy with all required detasllo within 1".. 75' consarvatiori
zone. on the basis that the petitioner failed to show substantial hardahfp, financial yr atherwise, relating
to unique soil conditions, relating to shape, or topography of land, as required under Chapter 40A,
Saction 10 of the General Laws and Section 10.4 of the Zoning Byiaua;. Voting in favor of the dental:
Wafter fi: Soule, Raymond Viwzlo. Srnit Karpinski. Bien McIntyre. GODrpe Earley.
Post -it" brand tax transmittal memo' 1371 Melpsg�s ► C)?/4L
To
P • rner+e
BOARD 4F APPPAl.6 /
Raymond VKenzlo, aCtl Chairman
s �
Walter Soule. Zoning Board of Appease
ALTERNATIVE ACCESS REPORT
October 27, 1997
Location: 1 Dale Street, North Andover, MA
Purpose Access for a proposed 7 lot Subdivision -Berrington Place
I have been asked by the applicant, MPG Realty Corp., of I 1 Old Boston Road,
Tewksbury, MA 01876 to prepare a report on the feasibility of an alternative access to the
subject property proposed as a 7 lot subdivision known as Berrington Place. This request
is pursuant to a review comment made several months ago by Ms. Kathleen Colwell, the
Planning Director of the Town of North Andover to Mr. Kenneth Grandstaff..
Prior to this report, I have previously submitted a brief to the Town of North Andover
reflecting my view that an alternative access is not necessary pursuant to state statute and
Town of North Andover regulations. Further, my brief was supported by the applicant's
attorneys from the law offices of Philips, Gerstein, Holber & Channen of 25 Kenoza
Avenue, Haverhill MA 01830. These briefs are currently in the Town's possession.
Having said that, this report will only serve to address the special requirements of the
zoning regulations Section 4.136 Watershed Protection District, Subsection 4.c.iv. "proof
that there is no reasonable alternative location outside the non -disturbance and/or non
discharged buffer zones, whichever is applicable, for any discharge, structure, or activity,
associated with the purposed proposed use to occur".
The following three properties to the northwesterly boundary of the subject parcel owned
by Johaine Realty Trust, Barbara Grasso and James Rice, are exclusive executive homes
with outside amenities such as pools and tennis courts. Along the northern boundary are
two other parcels owned by Connecticut Financial, enc. and the Town of North Andover
(town farm) in which the common boundaries are located in standing water. The Morley
property to the east of the subject site is bounded by a common wetland area as well.
The following homes along the southerly boundary to the Dale Street, Appleton
intersection, all abut the subject property, however, have wetlands that prevent access to
the subject property. These parcels are owned by Harold Morley, Richard O'Toole,
Frederick White, Michael and Virginia Biibar, Chrisifne Melvin, Edward and Jacqueline
Morgan, Jan and Stephanie Bajan, Agnes E. McCallister, Daniel and Joan Takesian,
Gregory E. and Kathleen Garbick and R. Ashton Smith. All of these properties are
bounded by wetlands and the accompanying watershed setbacks.
Along Dale Street to the northwest, which is a one-way street going east, is the R. Ashton
�I Smith and the Donald and Maria Milner properties. These properties have single family
residential homes and have wetlands or wetland setback restrictions.
C
aJThe sole property to the west of the subject site i >
J s owned by Joseph and Carol O'Connell.
Their home is located to the southeasterly portion of their property along the
southwesterly boundary of the subject parcel. Their home is in such a location as to
prevent reasonable access between the O'Connell and Hillner homes.
In addressing the Reasonable Alternative Access issue, I spoke with Mr. O'Connell and
determined that though the property was not on the market, he would be willing to sell the
parcel for an asking price of $250,000.00 dollars. This is even after he commented that
his home is only worth $125,000.00 to $150,000.00 dollars. He would not entertain a
roadway going in between his home and the Hillner home. In a discussion with Curt
Young of Wetlands Preservation, Inc. (WPI), he determined that there are wetlands along
the O'Connell left front boundary as well as in the central and northwesterly sections of
the property. This would prevent any access from further west.
In addition to the price of the property being extremely unreasonable, there are two other
more important issues that deal with any access from this location. The first issue is
access at a common point that becomes a safety hazard. The roadway location to Dale
Street would be at the end of a curve that has neither the site stopping distance (SSD) or
reasonable intersection site distance (ISD) for traffic having to enter Dale Street and turn
left. As I had mentioned before, all traffic entering on this portion of Dale Street must
turn left because of its one-way direction. The second issue is the more likely impact of a
roadway being wedged between and close to, the O'Connell and Hillner homes. This
would result in a likely decrease in their property values.
For these reasons, this property as well as any of the others abutting parcels are not
reasonable accesses to the subject parcel.
In closing, the subject site has two existing means of egress. Both were created when the
property was previously subdivided. Both access' ire remaining just that, access' to the
main portion of the property. Whether it be a driveway, private or public roadway, access
1 to the uplands to the northwest and central portion of the property can be gained from the
s westerly access currently shown on plans submitted to theTown. Therefore, it is my
opinion that no reasonable alternative access can be gained to the property and should not
be considered in dealing with the briefs prepared by me or the applicant's attorney.
Respectfully submitted,
J
xr� Elmer A. Pease, II CPM, EA
cc: Mike Gerstein, Esq.
Attachments
EAP/sp
j earnoand.doc
DJK
Two Dundee Park. Suite 301
�I Andover, MA 01810-3725
Office: 508-474-1994
Fax: 508-474-1778
December 30, 1997
Mr. Elmer A. Pease
PD.Associates, LLC
704 Londonderry Turnpike
Auburn, NH 03032
RE: Berrington Place
Dale Street
North Andover, MA
Dear Elmer:
Dermot J. Kelly Associates. Inc.
Traffic Engineering/Transportation Planning
As per your request, DJK Associates, Inc. has evaluated an altemative driveway location to the
proposed Berrington Place 7 -lot residential subdivision. The current proposed driveway location
is opposite #125 and #133 Dale Street. The alternative drive would be approximately 500 feet to
west of the current proposed driveway location.
Adjacent to the current proposed site drive location, Dale. Street is relatively tangent and level.
At the alternative driveway location, Dale Street exhibits a large radius curve, which could
negatively affect the available sight distance. It is generally undesirable to locate a new
intersection on a section of roadway that exhibits a large radius curve, especially when an
available tangent section of roadway exists.
Should you have any additional questions, comments and/or if you require any additional
information please do not hesitate to call me.
Sincerely,
DJK Assoicates, Inc.
Dermot Kelly, P. E.
DJK/ah
cc: File
\\4770\c\DJK\J0B\355-LI02 Elmer Pease.doc
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DALE STREET
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Form 5
1S9S
Z-1 OEP F•.te rto•
242-871
(lo r,w Urv+•K3M Qy UF1't
Commonwealth c,ry,Town North Andover
of Massachusetts MPG Realty Corp.
aoobcanr
Order of Conditions
Massachusetts Wetlands Protection Act
G.L. c. 131, saU
and under the Town of North Andover's Bylaw Chapter 178
rcr NORTH ANDOVER CONSERVATION COKNISSION
MPG Realty Corp.
(Name of Applicant)
11 Old Boston Road
Tewksbury, MA 01876
dress
Order is issued and delivered as follows:
l ~and delivery to acpficant or representative on
Ity,
certified mail, return receipt requested on
�prcject is located at Lot 1 Dale Street
c/o MPG Realty Trust
(Name of property owner)
Address Same
January 8, 1998
to prccerty is recorded at the Registry of Nr?rrl,a rt? rceP
C dic rage
912 187 & 188
C
ate (if registered)
Notice of Intent Icr this project was filed on July 3, 1997
-E
:ut:ic he2r inc 'ryas closed on December 17, 1997
(Date)
Gines
v
Idute)
(Cute)
Ica Ie)
t.c_:.n Andover Conservation Commission
has rE, ./re'%%eS'.r the (1C lICo nl
rpt and ,tuns ang i,as held a .-UClic hearing on the-rclect. used on the ,nlorrnatrcn availacle Ic the
'1 SCC
at this time, the �r.�r r• has celerrnirteCi lh,-,t
��_... _
area on which the crccosed work is to be done is significant to [tie lcllo.%•nn^ ;rtleresrs in acccrcmice v.�ttt
,e Fresumcticns of Signific= ce �e!c in the reeulabons lcr each Area Sut,lec: to Protec,icrt Uncer the
C'a.178 Prevention of Erosion & Sedimentation Cn.178Wi_dlife
• (c^eck•as acGrccriatet: y�
Pubic water suppiy Flcad control ❑ Lind containing sl.eillish
Private water supply Slcrm damage o r_Pe•/nticn Fisheries
Ground water supply PrevenUcri-al pollution-- ( Protection of wildlife habitat•
$325.00 $112 50
;c al Fiiirc Fee Submitted
y yr i cwn Share
1 at Refund Cue S
$212.50
City(Town Portion S
('/2 total)
State Sham
(�%: tori in Pxcess of 5..�)
State Poruon S
('n total)
L�
DEP FILE # 242 - 871
�I Therefore, the North Andover Conservation Commission (hereafter the
"NACC") hereby finds that the following conditions are necessary, in
accordance with the Performance Standards set forth in the State Regulations,
w�
V the local ByLaw and Regulations, to protect those interests noted above. The
NACC orders that all work shall be performed in accordance with said
conditions and with the. Notice of Intent referenced above. To the extent that the
following conditions modify or differ from the plans, specifications or other
proposals submitted with the Notice of Intent, the conditions shall control.
GENERAL CONDITIONS
1. Failure to comply with all conditions stated herein, and with all related
statutes and other regulatory measures, shall be deemed cause to revoke or
modify this Order.
2. This Order does not grant any property rights or any exclusive privileges; it
does not authorize any injury to private property or invasion of property
rights. However, the NACC, agent of the NACC or the Department of
Environmental Protection (DEP) reserves the right to enter and inspect the
property at all reasonable times, until a Certificate of Compliance is issued,
i to evaluate compliance with this Order of Conditions, the Act, the North
J Andover Wetland ByLaw and Regulations, 310 CMR 10.00, and may require
any information, measurements, photographs, observations, and/or
materials, or may require the submittal of any data or information deemed
k necessary by the NACC for that evaluation. Further, work shall be halted on
the site if the NACC, agent or DEP determines that any of the work is not in
compliance with this Order of Conditions. Work shall not resume until the
r , NACC is satisfied that the work will comply, and has so notified the
applicant in writing.
3. This Order does not relieve the permittee or any other person of the necessity
J of complying with all other applicable federal, state or local statutes,
J ordinances, by-laws or regulations.
�J
4. The work authorized hereunder shall be completed within three years from
the date of this order.
J 5. This Order may be extended by the issuing authority for one or more periods
of up to one year each upon application to the issuing authority at least thirty
days (30) prior to the expiration date of the Order (Refer to Section VIII (p.15)
�v of the North Andover Wetland Regulations).
ICAWinword\00C\242-871.dce 1 NACC 1/8/98
LDEP FILE # 242 - 871
6. The NACC reserves the right to amend this Order of Conditions after a
legally advertised public hearing if plans or circumstances are changed or if
new conditions or information is so warrant.
7. Where the Department of Environmental Protection (DEP) is requested to
make a determination and to issue a Superseding Order, the Conservation
Commission shall be a party to all agency proceedings and hearings before
the Department.
8. The conditions of this decision shall apply to, and be binding upon, the
applicant, owner, its employees and all successors and assigns in interest or
control. These obligations shall be expressed in covenants in all deeds to
succeeding owners of portions of the property.
9. The term "Applicant" as used in this Order of Conditions shall refer to the
owner, any successor in interest or successor in control of the property
referenced in the Notice of Intent, supporting documents and this Order of
Conditions. The NACC shall be notified in writing within 30 days of all
transfers of title of any portion of property that takes place prior to the
issuance of a Certificate of Compliance.
10. The proposed work includes: Construction of a seven (7) lot residential subdivision
including portions of the roadway, grading, utility installation and stormwater
management systems.
i
C A W inword\OOC\242-871. doc
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NACC 1/8/98
DEP FELE # 242 - 871
11. The work shall conform to the following (except as noted in the remainder of
this document where revisions may be required):
Notice of Intent filed by: MPG Realty Corporation
11 Old Boston Road
Tewksbury, MA 01876
DATED 7/3/97
Drainage Report
Prepared by: Allen & Major Associates, Inc.
Entitled "Drainage Calculations for Berrington
Place"
DATED REV 11/5/97
Stormwater Operations
and Maintenance Plan
Prepared by: Wetlands Preservation, Inc.
Entitled "Operations and Maintenance Plan
DATED REV 11/14/97
Geo -Technical Evaluation
Prepared by: JGI Jaworski Geotech, Inc.
Entitled "Geotechnical Evaluation - Dale Street
Retaining Walls."
DATED 12/8/97
Plans prepared by: Allen & Major Associates, Inc.
Entitled "Preliminary Plan of Land - Grading &
Drainage Plan"
Sheet 3A
DATED REV 12/16/97
Entitled "Preliminary Plan of Land - Grading &
Drainage Plan"
Sheet 3B
DATED REV 12/16/97
Entitled "Profile - Glenore Circle"
Sheet 4C
DATED 11/13/97
CAWinword1000\242-871.doc 3 NACC 1/8/98
0 DEP FILE # 242 - 871
0 13.
y
C
u
Entitled "Pre -development"
Sheet D1
DATED REV 11/13/97
Entitled "Post -Development"
Sheet D2
DATED REV 11/13/97
Entitled "Rational"
Sheet D3
DATED REV 11/13/97
Entitled "Erosion Control Details"
Sheet 9
DATED 11/13/97
The following wetland resource areas are affected by the proposed work:
Buffer Zone to Bordering Vegetated WetlandB
ese resource areas
are significant to the interests of the Act and Town Lawhas noted above.
These resource areas are also significant to the recreational and wildlife e
interests of the ByLaw. The applicant has not attempted to overcome the
presumption of significance of these resource areas to the identified interests.
The NACC agrees with the applicant's delineation of the wetland resource
areas on the site as shown on the plans dated referenced herein. Prior to the
issuance of a Certificate of Compliance, the applicant will submit a pian
showing the site's wetland delineation at a scale identical to the Town
wetland map for this location.
14. The NACC finds that the intensive use of the upland areas and buffer zone
Proposed on this site will cause further alteration of the wetland resource
areas. In order to prevent any alteration of wetland resource areas a twenty
five foot (25') No -Disturbance Zone (except at the roadway entrance in the
vicinity of wetland flags A5 through A13 and B13 through B16) and a fifty
foot (50') No -Construction Zone shall be established from the edge of the
adjacent wetland resource area. The Conservation Administrator and/or
other agents of the NACC do not have the authority to waive these setbacks
as established under the local bylaw. No disturbance of existing grade, soils
or vegetation is permitted in the No -Disturbance zone. (See Appendix 5 of
the local Regulations).
015. The owners of the project and their successors in title, in the event the
proceed to alter areas subject to the Commission's jurisdiction under the
order, agree that the Order does not in itself impose upon the Town any
* 0
C:1 W inword\OOC\242-871. doc
a4 NACC 1/8/98
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DEP FILE # 242 871
responsibility to maintain the proposed drainage system and that said Town
shall not be liable for any damage in the event of failure. By acceptance of
this Order, the owners agree to indemnify and hold harmless to the Town
and its residents for any damage attributable to alterations undertaken on
this property pursuant to the Order. Issuance of these Conditions does not in
any way imply or certify that the site or downstream areas will not be subject
to flooding, storm damage or any other form of water damage. Maintenance
of the drainage system, if accepted by the Town as part of a public way,
becomes the responsibility of the Town.
16. There shall be no increase in the post development discharges from the storm
drainage system or any other changes in post development conditions that
alter the post development watershed boundaries as currently depicted in the
Notice of Intent and approved by this Order of Conditions, unless
specifically approved in writing by the Commission.
17. This document shall be included in all construction contracts, subcontracts,
and specifications dealing with the work proposed and shall supersede any
conflicting contract requirements. The applicant shall assure that all
contractors, subcontractors, and other personnel performing the permitting
work are fully aware of the permits terms and conditions. Thereafter, the
contractor will be held jointly liable for any violation of this Order resulting
from failure to comply with its conditions.
PRIOR TO CONSTRUCTION
18. No work shall be undertaken until all administrative appeal periods from
this Order have elapsed or, if such an appeal has been filed, until all
proceedings before the Department or Court have been completed.
19. This Order shall be recorded by the applicant at the Registry of Deeds
immediately after the expiration of all appeal periods. No work shall be
undertaken until the Final Order has been recorded in the Registry of Deeds
or the Land Court for the district in which the land is located, within the
chain of title of the affected property. In the case of recorded land, the Final
Order shall also be noted in the Registry's Grantor Index under the name of
the owner of the land upon which the proposed work is to be done. In the
case of registered land, the Final Order shall also be noted on the Land Court
Certificate of Title of the owner of the land upon which the proposed work is
to be done. The recording information shall be submitted to the North
Andover Conservation Commission on the form at the end of this Order
prior to commencement of the work. Any Order not recorded by the
UCAWinword\00C\242-871.doc 5 NACC 1/8/98
DEP FILE # 242 - 871
applicant before work commences may be recorded by the NACC at the
applicant's expense.
20. A sign shall be displayed at the site not less than two square feet or more
than three square feet in size bearing the words "Massachusetts Department
of Environmental Protection, File Number 242-871."
21. Any changes in the submitted plans caused by the applicant, another Board's
decision or resulting from this Order of Conditions must be submitted to the
NACC for approval prior to implementation. If the NACC finds said
changes to be significant, the NACC will call for another public hearing (at
the expense of the applicant). Within 21 days of the close of said public
hearing the NACC will issue an amended or new Order of Conditions. Any
errors found in the plans or information submitted by the applicant shall be
�J considered as changes. The proposed project may be still under review by
other local or state boards or agencies. This may result in changes to the
project plans or wetland impacts. If any such changes occur a revised plan
' and an explanation of the revisions shall be submitted to the NACC for
review and approval prior to the start of construction. No work shall begin
on a project until written approval has been granted by the NACC.
22. It is -the responsibility of the applicant, owner, and/or successor(s) to ensure
L� that all conditions of this Order of Conditions are complied with. The project
engineer and contractors are to be provided with a copy of this Order of
a
Conditions and referenced documents before commencement of
construction.
23. Prior to any work on-site the applicant shall submit to the NACC for
approval a sequencing plan for construction and erosion and sedimentation
control with supporting plans and details as appropriate.
24. Wetland flagging shall be checked prior to start of construction and shall be
re-established where missing so that erosion control measures can be
I properly placed and wetland impacts can be monitored. The proposed limit
of work shall be shall be clearly marked with stakes or flags and shall be
confirmed by the NACC. Such markers shall be checked and replaced as
necessary and shall be maintained until all construction is complete.
Workers should be informed that no use of machinery, storage of machinery
or materials, stockpiling of soil, or construction activity is to occur beyond
this line at any time. All flags used for the above purposes shall be of a color
different from other flagging used on the site.
r 25. A row of staked hay bales backed by trenched siltation fence shall be
placed between all cons truction.areas and wei_lands. The erosion control
Vil CAWinword\0oC\242-871.doc 6 NACC 1/8/98
� ty
DEP FILE # 242 - 871
barrier will be properly installed and placed as shown on the plans approved
and referenced herein and shall be inspected and approved by the NACC
prior to the start of construction and shall remain intact until all disturbed
areas have been permanently stabilized to prevent erosion. All erosion
prevention and sedimentation protection measures found necessary during
construction shall be implemented at the direction of the NACC. The NACC
reserves the right to impose additional conditions on portions of this project
to mitigate any impacts which could result from site erosion, or any
noticeable degradation of surface water quality discharging from the site.
For example, installation of erosion control measures may be required in
areas not shown on the plan(s) referenced in this Order of Conditions.
Should such installation be required by the NACC, they shall be installed
within 48 hours of the Commissions request.
26. The applicant shall have on hand at the start of any soil disturbance, removal
or stockpiling, a minimum of seventy five (75) hay bales and sufficient
stakes for staking these bales (or an equivalent amount of silt fence). Said
bales shall be used only for the control of emergency erosion problems, and
shall not be used for the normal control of erosion.
27. A check payable to the Town of North Andover shall be provided in the
amount of $39,000 which shall be in all respects satisfactory to Town
Counsel, Town Treasurer, and the NACC, and shall be posted with the North
Andover Town Treasure through the NACC before commencement of work.
Said deposit of money shall be conditioned on the completion of all
conditions hereof, shall be signed by a party or parties satisfactory to the
NACC, and Town Counsel, and shall be released after completion of the
project, provided that provision, satisfactory to the NACC, has been made for
performance of any conditions which are of continuing nature. The applicant
may propose a monetary release schedule keyed to completion of specific
portions of the project for the NACC's review and approval. This condition is
issued under the authority of the local ByLaw.
28. The applicant shall be responsible for placing signs on each parcel
designating the applicable lot number as depicted on the plans approved and
referenced herein.
29. The applicant shall designate a professional Wetland Scientist as an
"Erosion Control Monitor" to oversee any emergency placement of controls
and regular inspection or replacement of sedimentation control devices. The
name and phone number of the erosion control monitor must be provided to
the NACC in the event that this person has to be contacted, due to an
emergency at the site, during any 24-hour period, including weekends. This
person shall be given the authority to stop construction for erosion control
CAWinword\00C\242-871.doc 7 NACC 1/8/98
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DEP FILE # 242 - 871
purposes. The erosion control monitor will be required to inspect all such
devices and oversee cleaning and the proper disposal of waste products.
Cleaning shall include removal of any entrapped silt. At least once during
each week in which construction activities occurs on-site and for as long
thereafter as ground remains unstabilized, the applicant shall submit a
written report from the erosion control monitor to the NACC certifying that,
to the best of his/her knowledge and belief based on a careful site inspection,
all work is being performed in compliance with this Order of Conditions.
The erosion control monitor must visually inspect all sedimentation/erosion
control measures and assume responsibility for their maintenance on a
weekly basis and that they are functioning as intended. In addition, all
wetland resource areas must be visually inspected for siltation, turbiditv,
and/or other water quality impacts.
30. Once these above mentioned pre -construction requirements are complete,
the applicant shall contact the Conservation Office prior to site preparation
or construction and shall arrange an on-site conference with an NACC
representative, the contractor, the engineer, wetland scientist and the
applicant to ensure that all of the Conditions of this Order are understood.
This Order shall be included in all construction contracts., subcontracts, and
specifications dealing with the work proposed and shall supersede any
conflicting contract requirements. The applicant shall assure that all
contractors, subcontractors and other personnel performing the permitted
work are fully aware of the permit's terms and conditions. Thereafter, the
contractor will be held jointly liable for any violation of this Order of
Conditions resulting from failure to comply with its conditions. The
applicant or contractor shall notify the NACC in writing of the identity of the
on-site construction supervisor hired to coordinate construction and to ensure
compliance with this Order. A reasonable period of time shall be provided
as notice of the pre -construction meeting (e.g. 72 hours).
SUBDIVISION LOT DEVELOPMENT
31. The NACC shall be notified in writing of any lot line or number changes
with a copy of a plan showing these changes prior to any work on these lots.
1ECAWinword\00C\242-871.doc 8 NACC 1/8/98
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DEP FILE # 242 - 871
DURING CONSTRUCTION
32. Immediately upon completion of each dwelling foundation, and prior to
further construction activities associated with the site, the applicant shall
complete a plan prepared by a Registered Professional Land Surveyor
(R.P.L.S.) which accurately depicts the foundation location and it's proximity
to wetland resource areas as approved under this Order of Conditions. Said
plan shall be submitted to the Conservation Administrator for approval.
33. Upon beginning work, the applicant shall submit written progress reports
every month detailing what work has been done in or near resource areas,
and what work is anticipated to be done over the next period. This will
update the construction sequence.
34. Approved de -watering activities anticipated at the roadway entrance location
shall be supervised and witnessed by the designated erosion control monitor.
This designee must be on-site while work specific to. the roadway retaining
wall installation is occurring and until this section is complete. Dewatering
activities shall be conducted as shown on the approved plans and shall be
monitored daily by the erosion control monitor to ensure that sediment laden
water is appropriately settled prior to discharge toward the wetland resource
areas. No discharge of water is allowed directly into an area subject to
jurisdiction of the Wetlands Protection Act and/or the North Andover
Wetland ByLaw. If emergency de -watering requirements arise, the applicant
shall submit a contingency plan to the Commission for approval which
provides for the pumped water to be contained in a settling basin, to reduce
turbidity prior to discharge into a resource area.
35. All catch basins shall contain oil/ gasoline traps, and it shall be a continuing
condition of this order, even after a Certificate of Compliance is issued, that
the oil/gasoline traps in the catch basins be maintained. All catch basins
shall be free of all accumulated silt and debris before a Compliance is issued
and the owner or his/her agent shall so specify in the request for
Compliance.
36. The sewer lines on the site shall be tested for water tightness in accordance
with North Andover DPW standards.
37. Any fill used in connection with this project shall be clean fill, containing no
trash, refuse rubbish or debris, including but not limited to lumber, bricks,
plaster, wire ,lath , paper, cardboard, pipe, tires, ashes, refrigerators, motor
vehicles or parts on any of the foregoing.
CAWinw0rdl00C\242-871.doc 9 NACC 1/8/98
DEP FILE # 242 - 871
38. No exposed area shall remain unfinished for more than thirty (30) days,
unless approved by the NACC.
39. No regrading in the buffer zone shall have a slope steeper than 2:1
(horizontal: vertical). Slopes of steeper grade shall be rip -rapped to provide
In permanent stabilization.
40. There shall be no stockpiling of soil or other materials within twenty-five (25)
feet of any resource area.
41. Washings from concrete trucks, or surplus concrete, shall not be directed to,
any drainage system, or wetland resource area.
42. All wasteenerated b , or associated with, the construction activity shall be
g Y tY
contained within the construction area, and away from any wetland resource
ti area. There shall be no burying of spent construction materials or disposal of
waste on the site by any other means. The applicant shall maintain
dumpsters (or other suitable means) at the site for the storage and removal of
such spent construction materials off-site. However, no trash dumpsters
will be allowed within 50' of areas subject to protection under the Act or
local ByLaw.
43. Accepted engineering and construction standards and procedures shall be
followed In the completion of the project.
44. During and after work on this project, there shall be no discharge or spillage
of fuel, or other pollutants into any wetland resource area. If there is a spill
or discharge of any pollutant during any phase of construction the NACC
shall be notified by the applicant within one (1) business day. No
construction vehicles are to be stored within 100 feet of wetland resource
areas, and no vehicle refueling, equipment lubrication, or maintenance is to
be done within 100 feet of a resource area.
AFTER CONSTRUCTION
J
45. No underground storage of fuel oils shall be allowed on any lot within one -
hundred (100) feet of any wetland resource area. This condition shall survive
this Order of Conditions, and shall run with the title of the property. This
condition is issued under the authority of the Town's Wetland protection
BY Law.
!� CAWinword\00C\242-871.doc 10 NACC 1/8/98
DEP FILE # 242 - 871
46. Fertilizers utilized for landscaping and lawn care shall be slow release, low -
nitrogen types (< 5%), and shall not be used within 25 feet of a resource area.
Pesticides and herbicides shall not be used within 100 feet of a wetland
resource area. This condition is issued under the authority of the Town's
Wetland Protection ByLaw and shall remain in perpetuity.
47. No road salt, sodium chloride, or other de-icing chemicals shall be used on
paved surfaces, and any arrangement for snow removal shall so stipulate due
to the importance of the site and wetlands. Permanent signs designating
"No -Salt Zone" and "No -Snow Stockpiling Zones" shall be displayed in
prominent locations to be approved by the Conservation Administrator
and a representative from the Department of Public Works.
48. After completion of work, the applicant shall permanently mark the edge of
` wetland resource areas and the No -Disturbance Zone with signs or
markers designating their sensitivity. This will ensure no further
inadvertent encroachment into the wetland. These permanent markers are
subject to review and approval by the NACC. The applicant shall instruct
all agents to explain these markers to buyers/lessees/landscapers and all
persons taking over the property from the applicant.
49. Upon completion of construction and grading, all disturbed areas located
outside resource areas shall be stabilized permanently against erosion. This
shall be done either by loaming and seeding according to SCS standards. If
the latter course is chosen, stabilization will be considered complete once
vegetative cover has been achieved.
50. Upon completion of the project, the applicant shall submit the following to
the Conservation Commission as part of a request for a Certificate of
Compliance:
a. A letter from the applicant requesting a Certificate of Compliance.
b. The name and address of the current landowner.
c. Signed statements from the individual property owners shall be
submitted with the request for a Certificate of Compliance indicating
that they have read and understood the Order of Conditions prior to
purchasing their property.
d. The name and address of the individual/ trust or corporation to whom
the compliance is to be granted.
e. The street address and assessor's map/parcel number for the project.
f. The DEP file number.
g. A written statement from a Registered Professional Civil Engineer of
the Commonwealth certifying that the work has been conducted as
shown on the plan(s) and documents referenced above, and as
conditioned by the Commission.
CAWinword\00C\242-871.doc 11 NACC 1/8/98
0 DEP FILE #242-871
h. An "As -Built" plan prepared and signed and stamped by a Registered
Professional Civil Engineer of the Commonwealth, for the public
record. This plan will include:
➢ "As -Built" post -development elevations of all drainage &
stormwater management structures constructed within 100 feet
of any wetland resource area.
➢ "As -Built" post -development elevations and grades of all filled
or altered wetland resource areas including the encompassing
buffer zone which is regulated as a wetland under the local
wetland bylaw.
➢ Distances from structures to wetland resource areas. Structures
include (but are not limited to) septic systems, additions, fences,
sheds, stone walls, pools, retaining walls, and approved decks.
➢ A line showing the limit of work and the extent of existing
erosion control devices. "Work" includes anv disturbance of
soils or vegetation.
➢ Location of all subsurface utilities entering the property.
52. The following special conditions shall survive the issuance of a Certificate
of Compliance (COC) for this project;
➢ 25' No -Disturbance Zone and a 50' No -Construction Zone shall
be established from the edge of adjacent wetland resource areas
except in those locations approved under DEP # 242-871.
Future work within 100' of existing wetland resource areas will
require a separate filing with the NACC (refer to Section XI
(page 18) of the Regulations for performance standards within
these zones) The Conservation Administrator and/or other
agents of the NACC do not have the authority to waive these
setbacks as established under the local ByLaw;
➢ Maintenance of catch basins (Condition #35);
➢ Discharge or spillage of pollutants (Condition # 44);
➢ Prohibition of underground fuels (Condition #45);
➢ Limitations on the use of fertilizers, herbicides, road salts, de-
icing compounds and pesticides (Conditions #46 -& 47).
CAWinword\OOC\242-871.doc 112 NACC 1/8/98
DEP FILE # 242 - 871
➢ The attached "Stormwater Operations and Management Plan',
including Best Management Practices. No additional filings
will be required to conduct maintenance of the above
referenced system and plan.
CAWinword\00C\242-87Ldoc 13 NACC 1/8/98
P..?. J242—
Issued Ey IN
Signatures
ANDQV$R A
242-871
Conservation Commission
This Order must be signed by a majority of the Conservation Commission.
On this 7th day of January 1 1
998 . before me
personally appeared Joseph W. Lynch, Jr.
. to me known to be the
person described in and who executed the foregoing instrument and acknowledged that he,she executed
the same as hisiher free act and deed.
nota.;, Pubic My commission expires
Tha apoficant.:he owner. any person aggrieved by this Order. any owner of land aoutnng the land upon which the pr000sea work is to be
Lf -I
. rlcnc o: any Ian residents of the City or town in which such land is located are hereoy notified of their right to request the Department of
=nv cnmental Quality Engineering to issue a Superseding Order. providing the request is made by certified mail or hand delivery to the
Deoanment, with the apwopnwe filing fee and Fee Transmttal Form as provided in 110 CMII 10.00(7), within for, days from the date of
,ssuance of this Order. A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation
Commission and the applicant.
If you wish. to appeal this decision under the Town Bylaw,
a comp.iaint must be filed in Superior Court in accordance with M.G.L.
` Chapter 249 S.4
ERECORD, TNG INcORMATTON:
Detach on dotted line and submit to the North Andover Conservation Comm._prior to commencement of work.
...............r:.....r....C...............................................................................................................................................................
...;.�..n_.d
To ov.....e.._ ons....ervation Commission, 120 :lain Sc. , North Andover ,L 0184
tY
Please be advised that the Order of Conditions for the project at
242- Deeds , Northern EssexFile Number 871 has been recorded at the Registry o1 and
I
II—)hasbeen noted in the c.'lain of litre of the allec:ed property in accordance with General Condition Bon . 19
J i If recorded land. the instrument numoer which identifies this transac:jon is
11 registered land. the document number which identifies this transaction is
Signature Aor)bcant
S sA
f;
Berrington Place Definitive Subdivision
Conditional Approval
The Planning Board herein APPROVES the Definitive Subdivision for a seven (7) lot subdivision
known as Berrington Estates Place. MPG Realty Corporation, 11 Old Boston Road, Tewksbury, MA
01876, submitted this application on January 16, 1998. The area affected is located off of Dale Street
in the R- l Zoning. District.
The Planning Board makes the following findings as required by the Rules and Regulations Governing
the Subdivision of Land:
A. The Definitive Plan, dated January 16, 1998, last revised on 3/3/98, includes all ofthe infomtation
indicated in Section 3 of the Rules and Regulations concerning the procedure for the submission of
plans.
B. The Definitive Plan adheres to all of the design standards as indicated in Section 7 of the Rules and
Regulations except as noted in Condition 17 Waivers.
C. The Definitive Plan is in conformance with the purpose and intent of the Subdivision Control Law.
D. The Definitive Plan complies with all ofthe review comments submitted by various town
departments in order to comply with state law, town by-laws and insure the public health, safety,
and welfare ofthe town.
Finally, the Planning Board finds that the Definitive Subdivision complies with Town Bylaw
requirements so long as the following conditions are complied with:
1) Environmental Monitor: The applicant shall designate an independent environmental monitor
who shall be chosen in consultant with the Planning Department. The Environmental Monitor
must be available upon four- (4) hour's notice to inspect the site with the Planning Board
designated official. The Environmental Monitor shall make weekly inspections ofthe project and
file monthly reports to the Planning Board throughout the duration of the project. The monthly
reports shall detail area of non-compliance, if any and actions taken to resolve these issues.
2) Prior to endorsement of the plans by the Planning Board the applicant shall adhere to the
following:
�I a) A Development Schedule must be submitted for signature by the Planning Board, which
conforms to both Sections 4.2, and Section 8.7 of the North Andover Zoning Bylaw. The
schedule must show building permit eiig.ibility by quarter for all lots.
b A Site O Bond in the amount of five thousand '$5,000 dollars to be held b the Town
Pew . t ) y
of North Andover. The Site Opening Bond shall be in the fornt of a check made out to the
I -E
Town of North Andover that will be placed into an interest bearing escrow account. This
amount shall cover any contingencies that might affect the public welfare such as site -opening.
clearing, erosion control and performance of any other condition contained herein, prior to the
posting of the Roadway Bond as described in Condition 4(d). This Site Opening Bond may at
the discretion of the Planning Board be rolled over to cover other bonding considerations, be
released in full, or partially retained in accordance with the recommendation of the Planning
Staff as directed by a vote of the N APB.
c) The final subdivision plans must be reviewed and approved by the outside consultant, the
Planning Department and D.P.W.
d) A covenant (FORM 1) securing all iots within the subdivision for the construction of ways and
municipal services must be submitted to the Planning Board. Said lots may be released from the
JJ covenant upon posting of security as requested in Condition 4(d).
e) The applicant must submit to the Town Planner a FORM M for all utilities and easements
placed on the subdivision.
P, All application fees must be paid in full and verified by the Town Planner.
g) The applicant must meet with the Town Planner in order to ensure that the plans conform to
the Board's decision. A full set of final plans reflecting the changes outlined above, must be
submitted to the Town Planner for review endorsement by the Planning Board, within ninety
(90) days of filing the decision with the Town Clerk.
h) The Subdivision Decision for this project must appear on the mylars.
i) All documents shall be prepared at the expense of the applicant, as required by the Planning
Board Rules and Regulations Governing the Subdivision of Land.
3) Prior to ANY WORK on the site,
a) Once the subdivision plans have been recorded, the applicant must apply for and receive
a variance for work within the 75' Conservation Zone under the North Andover
Watershed Protection District Zoning Bylaw. No work will be allowed on the site until
the variance has been issued. If the request for a variance is denied, this subdivision will
be in violation of the North Andover Zoning Bylaw and the approval will be deemed
rescinded.
b) Yei?ow "Caution" tape must be placed along the limit of clearing and grading as shown on the
J approved plan. The Planning Staff must be contacted prior to any cutting and or clearing on
site.
11
c) All erosion control measures as shown on the plan and outlined in the erosion control plan
must be in place and reviewed by the Town Planner.
4) Prior to any lots being released from the statutory covenants:
a) Three (3) complete copies of the endorsed and recorded subdivision plans and one (1) certified
copy of the following documents: recorded subdivision approval, recorded Covenant (FORM
1), recorded Growth Management Development Schedule, and recorded FORM M must be
submitted to the Town Planner as proof of recording.
b) All site erosion control measures required to protect off site properties from the effects of work
on the lot proposed to be released must be in place. The "Town Planning Staff shall determine
whether the applicant has satisfied the requirements of this provision prior to each lot release
and shall report to the Planning Board prior to a vote to release said lot.
c) The applicant must submit a lot release FORM J to the Planning Board for signature.
d) A Performance Security in an amount to be determined by the Planning Board, upon the
recommendation of the Department of Public Works, shall be posted to ensure completion of
the work in accordance with the Plans approved as part of this conditional approval. The bond
must be in the form of a check made out to the Town of North Andover. This check will then
be placed in an interest bearing escrow account held by the Town. Items covered by the Bond
may include, but shall not be limited to:
i)
as -built drawings
,:-Lj ii)
sewers and utilities
iii)
roadway construction and maintenance
iv)
lot and site erosion control
v)
site screening and street trees
vi)
drainage facilities
vii)
site restoration
-. viii) final site cleanup
A Performance Security may be established for each phase individually.
5) Prior to a FORM U verification for an individual lot, the following information is required by the
Planning Department:
a) A "One Way" sign must be placed on Dale Street visible from the new subdivision roadway in
a location approved by the DPW.
b) The Planning Board will review the status of the Subdivision and vote to verify FORM t
---- --- --- ---- -- -- - .,A-
applications as appropriate and in conformance with this decision.
c) An as -built plan must be submitted to the Division of Public Works for review and approval
prior to acceptance of the sewer appurtenances for use.
d) If a sidewalk is to be constructed in front of the lot, then such sidewalk must be graded and
staked at a minimum.
e) The applicant must submit a certified copy of the recorded FORM J referred to in Condition
4(c) above.
f) A plot plan for the lot in question must be submitted, which includes all of the following:
i) location of the structure,
ii) location of the driveways,
iii) location of the septic systems if applicable,
iv) location of all water and sewer lines,
v) location of wetlands and any site improvements required under a NACC order of
condition,
vi) any grading called for on the lot,
vii) all required zoning setbacks.
viii) Location of any drainage, utility and other easements,
g) All appropriate erosion control measures for the lot shall be in place. The Planning Board or
Staff shall make final determination of appropriate measures.
h) Lot numbers, visible from the roadways must be posted on all lots.
6) Prior to a Certificate of Occupancy being requested for an individual lot, the following shall be
required:
a) Sprinkler systems must be installed in all homes per NAFD requirements.
b) The roadway must be constructed to at least binder coat of pavement to properly access the lot
in question. Prior to construction of the binder coat, the applicant shall ensure that all required
inspection and testing of water, sewer, and drainage facilities has been completed. The
applicant must submit to the Town Planner an interim as -built, certified by a professional
engineer, verifying that all utilities have been installed in accordance with the plans and profile
sheet.
c) All necessary permits and approvals for the lot in question shall be obtained from the North
Andover Board of Health, and Conservation Comnnission.
4
•••• • ____ --- --- - naI"1 -,.fin^, .7 nllrl..v .— I — .. --- !f'��-/
�11
d) Pen anent house numbers must be posted on dwellings and be visible from the road.
e) There shall be no driveways placed where stone bound monuments and/or catch basins are to
be set. It shall be the developer's responsibility to assure the proper placement of the driveways
regardless of whether individual lots are sold. The Planning Board requires any driveway to be
moved at the owner's expense if such driveway is at a catch basin or stone bound position.
7) Prior to the final release of security retained for the site b the Town. the following shall be
Y g
completed by the applicant:
a) An as -built plan and profile of the site shall be submitted to the DPW and Planning Department
for review and approval.
b) The applicant shall petition Town Meeting for public acceptance of the street. Prior to .
submitting a warrant for such petition the applicant shall review the subdivision and all
remaining work with the Town Planner and Department of Public Works. The Planning Board
shall hold a portion of the subdivision bond for continued maintenance and operatiors until
such time as Town Meeting has accepted (or rejected in favor of private ownership) the
(� roadways. It shall be the developer's responsibility to insure that all proper easements have been
l� recorded at the Registry of Deeds.
8) The :Applicant shall ensure that all Planning, Conservation Commission, Board of Health and
Division of Public Works requirements are satisfied and that construction was in strict compliance
with all approved plans and conditions.
C9) The Town Planner will review any signs utilized for this project The applicant must obtain a sign
permit as required by Section 6 of the Bylaw. The Planning Board shall approve any entrance
structures. The applicant must remove any lighting used for the entrance signs prior to acceptance
of the subdivision.
10) The applicant shall adhere to the following requirements of the Fire Department:
a) Open burning is allowed by permit only after consultation with the Fire Department.
Ob) Underground fuel storage will be allowed in conformance with the Town Bylaws and State
Statute and only with the review and approval of the Fire Department and Conservation
Commission.
C11) There shall be no burying or dumping of construction material on site.
L� 12) The location of any stutttp dumps on site must be pre -approved by the Planning Board.
L, 13) The contractor shall contact Dig Safe at least 72 hours prior to commencing any excavation.
• —- I --t:c ___ ___ naI't I..— — la A!'1I\. _ I.I I—..1 --- - T G7C =i_.l MW
1
G
14) Gas, Telephone, Cable, and Electric utilities shall be installed as. specified by the respective utility
companies.
15) Any action by a Town Board, Commission, or Department which requires changes in the roadway
alignment, placement of any easements or utilities, drainage facilities, grading or no cut lines, may
be subject to modification by the Planning Board.
16) The following waivers from the Rules and Regulations Governing the Subdivision ofLand, North
Andover, Massachusetts; revised February, 1989 have been granted by the Planning Board:
a) Section 7(A)(4) Dead -End Streets: The Planning Board herein grants a waiver of
approximately 100' for the street length. The applicant has demonstrated that the street length
will have no adverse impact on the Watershed Protection District.
b) Section 7(D)(2) Sidewalks: The sidewalks will abut the curb per requirement of DPW.
c) Section 7(E)(1) Street Trees: The street trees will be placed outside of the ROW per
requirement of DPW.
d) These waivers have been granted in an effort to minimize the amount of cutting and filling
required on site thereby decreasing the amount of erosion and siltation on site.
e) The utilities must be installed and the streets or ways constructed to binder coat by
►'fin%, % 22, ZCx7(n (two years from the date permit granted). If the utilities are not
installed, the streets or ways are not constructed to binder coat and the Planning Board has not
granted an extension by the above referenced date, this definitive subdivision approval will be
deemed to have lapsed.
17) This Definitive Subdivision Plan approval is based upon the following information which is
incorporated into this decision by reference:
a) Plans entitled: "Definitive Plan of Land — Berington Place'', ten sheets dated January
l 6, 1998 last revised 313!98. Prepared by Allen & Major, Woburn MA
b) Reports entitled:
i) "Statement of Environmental. and Community Impact', dated January 15,
1998. -
it) "Water. Quality and Best Management Practices (AMP) Evaluation.".
Berrington Place, Dale Street, North Andover, Massachusetts, dated July 14,
6
�,••- � �...r-c c�c�r, �r,c - nan •curs-� .�ann[�uti u-.�nwi min- rn ua-�7-.,td�-1
1997, revised October 8, 1997.
Conservation Administrator
Director of Public Works
Health Administrator
Building Inspector
Police Chief
Fire Chief
Assessor
Applicant
Engineer
File
Berrington Estates - subdivision
7
E"
Notice to APPLICAYr 'jt.aN
CLERK and Cartlfication of Artie.. of Planning 9asrd
' on Definitd a Subdivision P1An entitlad: Berrington Place
�.
By. Allen & Major Associates, Inc. dated January 16, lg gg
w r .0♦ F s
The North Arudrver Plaruii.ng Saar -4 l.as voted to APPRDV:; said plan, sub, ect to the
following
ccnditicrs:
'
I. That the record owners of the subject lad forthwith execute and record
a "covenant rt;rdn$ with the land", or otherwise provide aecu.-iiy ;or the cc
.L,
at.uctior. of was and the u;stallation of municipal ser -rices wi:`sin said st;b-
dirisioc, all as proviced by G.L. c. 41, S. 81-U.
n
2. 'that al? such constructicn ead installations shs-U :�z &U respects
conform to the gcvernimg C'ules a 4 :ep�l .t3OIIs of tbia Board.
3. That, as required by the -North Andover Board of Raalth in its report to
this Boardr.no buyiing or other structure sha11 be built o; '_acrd u
p pen Lots
�, as shown on said Plan without the prior
consez~,, of sa{d Hoard of Health.
k
�
..Other co nd.ti utis
�'
-o
ry
opo
>
.
Za Lha cveat that no a ppeal shall have been take:., f: oa said tpprcva, withi
a�
twentp d y3 from this date, the }forth Andover Planniaa Boa---' wi.11 forthwith
trartafter endorse its formal apgraval upon said plan.
F • • s t F • ♦ • F • F M i F F � ♦ ♦ • • • F ♦ M ♦ i • ! P ♦ s • � • a f T
,'
bo :'th over ? Boa.. -d b � A.a?T�CV"�.J a1 fllaa, or he o�rir;g
i
e ons:
Richard S. Rowen
A.I�ESITI DEV. CORP. Fax:1 -5CO-851-9366 Apr 30 '98 10:40 P.01/08
Town of North Andover 199&
OFFICE OF
COMMUNITY DEVELOPMENT AND SERVICES } .
34 School Street
Notch Andover, Massachusetts 0 f 84 s �.
MU AM 1. SCOT �SS�cl+usti��
Director
rac.�1
NOTICE OF DECISION
z
Any appeal shall be filled
within (20) days after the w m
date of filling this Notice
in the Office of the Town o...��
Cleric. --: <--
Date April 23, 1998
Date of Hearing 3/17/98, 4/7/98 b 421/98
Petition of HPC, Realty corporation
Premises affected
Referring to the above petition for a special permit from the
requirements of the North AndovP
fttershed Protection District
so as to allow to build a roadway, vatexline and detention basing within the
non discharge, non disturbance and conservation buffer zones.
After a public hearing given on the above date, the Planning Board
voted to APPROVE the Watershed Special Permit
based upon the following conditions:
CC: Director of Public Works
Building Inspector
Natural Resource/Land Use Planner
Health Sanitarian
Assessors
Police Chief
Fire Chief
Applicant
Engineer
Towns Outside Ccnsultant
File
interested Parties
CONSERVATION -(919)6889530 • HF_dLTH • (979) 688•)540
Signe '�St. ! (.-�+t�0,�� W-1
Richard S.Rowen. Chairman
Alison Lescarbeau V. Chairman
John -Simons, Clerk
Richard Nardella
Joseph V. Mahoney
Planning Board
' PLtNNING - (9i8) 688-9535
*BI:ILDINCnFFICE . (97B) 688.1)545 - *ZONiNC BOARD OC' APPFALS - (914 9) 689.9641 1 *1J6 MAIN STREET y
H. rit:>l i 1 utv. l UKt . Fax Hpr 30 ' ,-:e 10:41
ETown of North Andover
OMCE OF
E COMMUNITY DEVELOPMENT AND SERVICES
• 30 School street
VII.LIAM 1. SCOTT North Andover, Massachusetts 01845
Director
aAp1'123, 1998
;vis. Joyce Bradshaw
Town Clerk
�I 120 Main Street
North Andover, MA 01845
C! Re: Watershed Special Permit -Lot 1 Dale Street
EDear Ms. Bradshaw
P. 02/08 s -k
o
,.
The North Andover Planning Board held a public hearing on Tuesday evening March 17, 1998 at
7:30 p.m. in the Department of public Works, upon the application of Lot I Dale Street, North
Ell Andover, Ma 01845 to request a special permit under Section 1.436 (3) (b) (c) (d) of the
Watershed Protection District of the North Andover Zoning Bylaw. The legal notice was
C properly advertised in the North Andover Citizen on January 28 & February 4, 1998 and all
parties of interest were duly notif<ed. The following members were present: Richard Rowen,
Chairman, Alison Lescarbeau, Vice Chairman, John Simons, Cleric, Joseph V. Mahoney and
CRichard Nardella.
The petitioner was requesting a special permit to allow to construct a roadway, waterline and
Edetention basins within the non discharge. non disturbance and conservation buffer zones.
The premises affected is Lot I Dale Street in the Residential - 1 (R-1) Zoning District and the
Watershed Protection District.
Elmer Pease and Eric Heyland of Allen &: Major Associates were present to represent Lot 1 Dale
Street. Mr. Pease highlighted the boundaries on the plan Mr. Pease stated that they moved the
C detention basin outside of the 75' conservation zone. Nis. Colwell stated that there is deadline for
the subdivision for the April 7, 1998 meeting. Iver. Rowen stated that we can't approve the
subdivision with out the special permit. Ms. Colwell stated that we still have not received DPW's
E,' comments. Mr, Rowen asked Ms. Colwell if they had any outstanding issues that she knows of
Nis. Colwell stated that there were not any for the subdivision,
Kerry I/IcCollister of 306 Dale Street, had concerns with the detention basin and culverts
discharging onto his property from the Bear 1iiIl subdivison. An abutter of 128 Dale Street had
concerns with the excavation and the removal of the culverts.
EIIARD Or APPEALS 688.9541 BUILDING 688-9543 CONSERVkhoN 689-9531)" HEALTH 688-9540 PLA+V1viNG 698-933<
E,
A.MESITI DEV. CORP. Fax:1-508-851-9366 Apr 30 '98 10:41 P.03/08
Mr. Nardella asked how big the culverts are now. lvir. Pease stated that they are 12". Dave Rand
showed the Board pictures. Mr. Nardella asked what D.PW's comments are. Ms. Colwell went
over DPW's concerns. Mr. Nardella asked ifDPW has responded to any concerns of the
abutters. Mr. NfcCollister stated that he has spoken to Lill Hmurciak, and he;s unaware of the
J lateral culverts. 1�•. McCollister stated that he doesn't understand how the can put the waterline
under the culverts. Mr. McCollister also stated that they were told the runoff from Bear Hill
t� would not be a problem, it seems to him that part of the Boards job is to protect the existing
homeowners. Mr. Rowea stated that we don't have to make the applicants solve the existing
Problems. Dazs Takesian of 398 Dale Street, stated that if you put up homes then the water will
have no place to go. +X%e already have Bear all's water runoff. Mr. Takesian stated that their
bbi�ackyards are filled with water up to their knees and with any serious r
ain they won't have a
backyard. Mr. Pease stated that we have already gone through all this with ConCom and have
done several tests. Mr. Pease stated that Mr. Chessia has reviewed the Stcrm Water Management
and we have addressed every concern they had. Mr. Pease stated that any other concerns with
Planning, there isn't anything we can do. The Beaver Pond is downstream.
Sandra Timmons of =0S Dale Street, stated that when Bear Hill was
Put'
n there was supposed to
baffle be a dry retention area put in and now the pipe is gone. Dave Rand of 280 Dale Street,
Tstated that he has looked for the plans for the dry retention area's for Bear HEI but, can't find
them. This would have been built for I00 year storm and if the pipe was there it would hold up
the water but, I believe a homeowner •a removed it. Mr. Rowen asked if a homeowner definitely
removed the pipe. Mr, Rand stated that he can't say that for sure. Mr. Rowen stated that the
applicants are required to ensure they don't create problems but they are not responsible for
curing the Bear Hill problem, vir. Simons stated that the assumptions may not be correct because
:r your not taking ail the potential areas to a count. Mr. Pease stated that we have answered all
these same questions. Mr. Pease stated that they have to make sure that the water drains on their
property correctly. Mr. Nardella asked Ms. Colwell if Mr. Chessia has any more cornments on
this parcel. NIS. Colwell stated that there were no more comments for Storm Water Mwnagemert
and these same issues were discussed at the ConCom meetings.
Dave Rand of "SO Dale Street, stated that in one weeks time the beavers put back all the dams.
Mr. Rand stated that he renewed his permit to take down 100 vards of the dam. Mr. Rand stated
that if the situation is not resolved we will be under water. NIr. Rowen stated that he understands
and if the review is correct this development is not going to have any impact on the situation. Mr.
Takesian stated that we don't have a problem with the beavers like Mr. Rand we have a problem
with the water coming onto ,,ur property. Mr. Rowen stated that we are doing the best we can.
Mr. Takesian stated that they will have a big problem with the impacts of the subdivision. Mr.
Rowen stated that he won't let this subdivision go forward if they are going to cause harm to the
y abutters. Mr. Rowen stated that the applicants will not make the problem worse. lair. Pease
stated that even the Town's Eneineer stated that the problem will not get worse. Mr. Rand asked
why no oae from DPW or John Chessia has come out to see this problem with Bear Hill. Mr.
Rowen suggested that they address their problems to Mr. Chessia. Ms. Colwell stated that they
fl
R MESITI DD). (DR.P. Fax :1-508- 8-51-9366
�pr 30 '�e, 10:42 P.04/08
should address their concerns to tate Planning Department and theta we ,,viil forward iherrt to,
Chessia. rV
,
Continued until April 7, 1998,
The North Andover Planning, Burd held a regular Meeting on April 7, 1998 the following
members were present: Richard Rowen, Chairm&n, Alison Lescarbeau, Vice Chairman, John:
Simons, Clerk, Joseph Mahoney, Richard Nardella & Alberto Angles,* Associate Member.
-Kathleen Bradley Colwell, Town Planner was also present.
IVIS. Colwell stated that there are no remaining issues with this filing. Nls. Colwell stated that we,
can't issue a decision until ZBA grants them a variance,
Or a motion by Mr. Nardella, seconded by Ms. Lescarbeau, the Board voted unanimously to
close the Public 'rearing and direct staff to draft a decision.
The North Andover Planning Board held a regular meeting on April ` 1993. T';Ie :ollowin;
members were present: Richard Rowen, Chairman, Alison Lescarbeau, Vice Chairman, Joscph
Mahoney & Adberto Angles, associate Member. Kathleen Bradley Colwell, Town Planter was -
also present.
LEOn a motion by',W. Angles, seconded by Vlx. Nlahoney, the Board voted ut:anirnousy to approve
the draft decision as amended for Lot I Dale Street.
Izi Attached are the conditions.
Sincerely,
Richard S. Rowen, Chairman
North Andover 'Planning Board
i
A. !ESITI ICU. CORP
Fax: 1-508-851-9366 Apr 30 '98 10:43 P. 05/08-
Berrington
5/08
Berrington place
Special Permit - Watershed Protection District
The Planning Board makes the following findings regarding the application of i G Realty
Corporation. I 1 Old Boston Road, Tewksbury, MA 01876, dated February 20,1998, requesting a
Speciai Psrniit. under Section 4.136 of the Zoning By -Law of the North Andover Zor ' o l3yiaw to
alloy+; activities which cause a change in topography and grade, vegetation removal azxd surface and
subsurface discharge of storm water ruroff within the Non -Disturbance Zone and surface and sub-
surike discharge of stormwater withizz the Non -Discharge Zone of the Watershed Protection District.
FINI MNGS OF FACT:
x , Ia accordance with 4.136(4) the Planx;itlg Board makes the finding that the intent of the Bylaw, as well
as its specibc criteria, are met. Specifically the Planning Board finds:
1. That as a result of the proposed construction in corqunction with other uses nearby, there will
not be any significant degradation of the quality or quantity of water in or entering Lake
Cochichewick. The Planning Board bases its findings on the following facts: Y
a) All of the homes will be connected to the Town sewer system;
b) storm water mitigation will catch and treat
g all storm water drainage,
C) the limit of cleating is restricted to the minimum necessary to construct the driveway;
d) a construction phasing plan and emergency response plan are required.
e) All of the proposed dwellings are located entirely outside of the non -disturbance zone.
2. that there is no reasonable alternative location outside the Non -Discharge Buffer Zone for any
discharge, structure or activity, associated with the proposed drivewav construction as the !ot
is located within the Non -Discharge Zone.
In accordance with Section 1, 0331 of the North Andover Zoning Bylaw. the Planning Board makes the
following findings:
A. The specific site is an appropriate location for the proposed else as :ill feasible stormwater and
erosion controls have been placed on the site;
B. The use will not adversely affect the neighborhood as the lot is located in a resident;al zone:
C. There will be no nuisance or serious hazard to ,,-ehic!es or pedestrians;
M
F -j
r
R. MES ITI DEV. C -EW. Fax:1-508-851-9366
Rpt' 30 '98 10:43 P. 06/08
D. Adequate and appropriate facilities are provided for the prober operation of the proposed use;
E. Tl;e Planning Board also makes a specific finding that the use is in harmony with the general
purpose and intent or the North Andover Zoning Bylaw.
Upon reaching the above findings, the Planning Board approves this Special Permit based upon the
following conditions:
SPECIAL, CONDITIONS:
I . This decision must be tiled with t, e North Essex Registry of Deeds. The tb [Iovr`i:zg izzfomnatiou
is tucluded as part of this decision:
a) Plans entitled: `Vefiniti;a Plan of Lard - Berizgton Place", ten sheets dated January
16, 1998 last revised 313/98. Prepared by Alen & Major, Woburn, 1'4A
b) .Reports entitled:
i) "Statement of Environmentai and Community Impact", dated January 15,
1998.
H) "Water Qualit;r and Best &i;:natgement Practices (BMP) Evaluation",
Berrington Place, Dale Street, North Andover, Nl ssachusetts, dated July 14.
1997, re,6sed October 8, 1991.
C) The T own Planner shall approve any changes made to these plans. Any charges
t ~ deemed substantial by the Town. Planner would require a public aearubg and
modification by the Planning Board
2. Prior to any work or site:
a) The limit of clearing line on each lot must be marked in the field with yellow caution
tape and :Host be reviewed and approved by the Tovvr. Phazuier.
b) A performance guarantee of ten thousand ($10,000) dollars in the form of a check
made out to the Town of North Andover must be posted to insure that construction
wihl tame piace in accordance with the pians and the conditions of this decision and to
ensure tlmt the as -built plana will be submitted.
C.) All erosion control measures as shown on theplan must be in place and reviewed by
the Town Planner.
d; The site shall have received all necessary pe=lts and approvals from the North
2
A. i ESI T I DEV. C9RP
Fax: 1-a08-r>�.1-9366 App 30 '98 10:44 P. 07/08
Andover Conservation Commission, Board of Health, and the Deinert of Public
Works and be in compliance with the above permits and approva;s.
I Prior to Verification of the FORM 1U (Building Permit lssuance):
a.) Prior to the verificat on of the FORM U for Lot 7, the applicant must propose
pernllatient boundary to be located along the lk:iit clearing. The boundar-i tray take the
form of a w, -AL fence, or shrubs to be approved by the Tcwn Planner. This will provide
a pe,, ent &-%undary along the 75' conser./ation zone on :his lot.
4. Prior to verification of a C:ert:ficate of Occupancy:
a) '.':for to Occupancy of Lot 7, the perrnarent boundary props sed in Condition � i a)
above must be constructed.
b) No pesticides. fertilizers_ or chermcals shat be used (n ,awn care or maintenance.
This restriction shall apply and be binding on all current and Lture owners. their
heirs. _ud rtitustrators. successors and assigns, and shall be incorporated within all
subsequent deeds to the premises.
5. Prior to release of the Peiformance Bond:
a) A Conservation Restriction enforceable by the Town of North. Andover through its
Comervatior, Cornrrissio.a ttat;st be placed on Lot 8. 'The Coase; vation Commission
mast approve the terms and conditions of this restriction.
b) The applicant shall su )rrrit a certifi?d copy of an as -built plan that shows all
construction i lcluc:ing taPographv, sewer !i.*tes. storm water mitigation trenches and
Other pertinent site features. This as -built ply a shall be submitted to the Town Planner
for approval and shall be-tairped by either a Registered Professional Land Surveyor or
Practicing E.nguzeer in Massachusetts.
c) the Planning Board must by a rimiority vote make a rindkig that the site is Lz
conf'bn-,=ce with the approved plats
6. Any stockpiles of earth must be covered with a tarp and contained by hay bales and silt tenee if
tl�ie piles are to remain on tze site for Iouger than t..vo weeks.
7. In no instance shall the, applicant's proposed construction be allowed to #unher impact the site
than as proposed on the plan referenced in C.onditioti: # L
8. No open burning shah be done except as is permitted during burning seasar. under the hire
Department regulations.
3
H. MESITI DEV. CCW. Fax:1pr .50 'mss IU;4t) x.08/08
9. The Contractor shall contact Dig Sale at least 72 hotzs prior to commencing excavation.
10. The provisions cif this conditional approval shall apply to and be binding upon the applicant, it's
employees and all successors and assign in interest or control.
11. Thu oernut shall be deemed to have lapsed after a two -(2) year period from the date
aeon which the Special Permit was granted unless substantial use or construction
has con -L -n raced.
c; Director of Public Works
Building lnspm-tcr
Health Agent
Assessor
Conurvation Administrator
Police Officer
Fire Chief
Applicant
Engineer
rile
Berrington E;stzes - Watershed
4
w
0
0
0
LI
lul
LEONARD KOPELMAN
KoPELMAN AND PAIGE, P. C.
DONALD G. PAICC
CLI2AOCTH A. LANE
ATTORNEYS AT LAW
JOYCE FRANK
JOHN W. 01OR010
31 5T. JAMES AVENUE
BAROARA J. 5AIN1 ANDNE
JOEL B. BARD
EVERETT J. HARDER
BOSTON, ►AASSACHUSCTTS 02116.4102
PATRICK J. COSTELLO
JOSEPH L. TEHAN. JR
BOSTON OFFICE
ANNE -MARIE M. HYLAND
(6171 556.0007
THERESA M. DOWDY
FAIL 4417) 654.1735
WILLIAM HEWIO 111
NORTHAMPTON OFFICE
DEBORAH A. ELIAUON
14131 5658032
JEANNE 3, MCKNIGHr
JUDITH C. CUTLER
WORCESTER OFFICE
RICHARD BOWEN 1508) 752-0203
November 21, 1997
KATHLEEN M. O'DONNELL
DAVID J. DONE9K1
BANDRA CHARTON
(LANA M QUIRK
JOHN RICHARD HUCKSAM. JR.
SUSAN M. CALLAHAN
BRIAN W. RILEY
JOHN J. KENNEY. JR.
ROBERT PATTEN
MARY L. GIORGIO
KATHLCCM C. CONNOLLY
MICHCLC C. RANOAZ20
PETER J. FEUERBACH
MARY JO HARRIa
THOMAS W. MCENANEY
JONATHAN M. SILVERSTEIN
TIMOTHY J. ERVIN
KATHARINE I. GOREE
CHRISTOPHER J. POLLART
BY FACSIMILE - (978*1688-9542FPD � '-�--. .
Tuts. Kathleen Bradley Colwell .
Town Planner NOV 2 4 W7
North Andover Town Hall
120 Main Street tYNINGR,!APT)
North Andover, MA 01845
Re: Berrington Estates Subdivision - Interpretation of Watershed
Protection District Bylaw and related Questions
Dear Ms. Colwell:
You have requested all opinion regarding several issues raised by the applicant's attorney .
in regard to the proposed Berrington Estates subdivision.
It is my understanding that, in particular, you.seek claritication as to: 1) whether the
Watershed Protection District Bylaw (the "Bylaxv") affects this proposed subdivision; ?) whether
the applicant, if required to obtain a variance, should obtain that variance from the Planning Board
or from the Zoning Board of Appeals; and 3) what role the Conservation Comilussion will play
with respect to this proposed subdivision prucess.
Briefly, in response to these questions, it is my opinion that: 1) the Watershed Protection
District Bylaw will affect any lot(s) the applicant records after October 24, 1994, the effective
date of the Bylaw; 2) if the applicant is required to obtain a variance from any part of the Zoning
Bylaw, including the Watershed Protection District Bylaw, the Zoning Board of Appeals will be
the proper authority to issue such a variance; and i) the Conservation Commission will be
responsible for enforcing the Town's general (i.e., non-zoning)u'etlands Bylaw and the State
Wetlands Protection Act, but not the Watershed Protection District Bylaw which will be enforced
by the Planning Board.
PRINTED ON RECYCLED PAPER
__ - .. .. .... - - .-........v .1, 1-11 -4 TC _ 71 T 571F; -%T -UL[.
I� KOPELMAN AND PAIGE, P.C.
C Ms. Kathleen Bradley Colwell
Town Planner
November 21, 1997
Page 2
Amlication of'the October. 1994 Watershed Protection District Bylaw
The facts as I understand them are as follows. The applicant seeks to subdivide a parcel
of property which he has owned since prior to the effective date of the Watershed Protection
a District Bylaw. However, before ile actually obtains subdivision approval for this property, he is
proposing to build a road into the center of it; lie intends to later- use this road as the access into
the- subdivision. This propost;d road viill undisputedly cress a non -disturbance buffer -one as
defined in the Watershed Protection District Bylaw. He hopes that by building the road prior to
I completing the subdivision process; he will avoid the Watershed Protection District Bylaw
requirements because the road will have been built on a Int which was in existence before October
24, 1994.
In my opinion, the applicant's property will not be subject to the restrictions of the
Watershed Protection District By-
law until the applicant records or registers the propertyas
consisting of rluw lots. That is, in my opinion the Bylaw requirements only apply to those lots
recorded or reuistered after October 24, 1994. Since the applicant's lot was in existence before
that date, it is my opinion that it is not subject to the Bylaw. Furthermore. in my opinion; merely
l=, proposing to subdivide the lot does not trigger the restrictions under the Bylaw. In my opinion,
inion,
the language of the Bylaw clearly states that it is applicable only to those lots recorded and
registered after October 24, 1997. Therefore, in my opinion, until the applicant records or
reizisters new lots of the subdivision, the Bylaw does not apply. As a result, whether the Bylaw
will apply or not in this particular case depends largely on how the applicant chooses to proceed.
�I it is possible that the applicant could complete the subdivision process, including construction of
the road, without recording any of the lots, i.e., by covenanting to secure the construction of the
subdivision road, thereby avoiding the necessity of recording the lots until after construction is
complete. On the other hand, it is possible he will record the lots prior to the completion of
construction, (after posting a bond or due to another circumstance), thereby triggering the Bylaw
requirements, in my opinion. In summary, it is my opinion that once the new lots arc recorded,
the Bylaw will become applicable, but work performed un (lie existing, "unsubdivided" lot will not
be subject to the Bylaw.
EVariance Procedures
r
With respect to the second question, it is my opinion that if the applicant should require a
variance ti'unr the pruvisions of the Watershed Protection District Bylaw, he must obtain such a
variance from the Zoning Board of Appeals. In a letter dated July 23, 1997, the applicant's
attorney seems to indicate he believes the Planning Board would be the proper authority from
which to obtain a variance. In my opinion, this position is mistaken. While it is true that pursuant
to the Watershed Protection District Bylaw, the Plattttinb Board is empowered to hear and act on
Special permit requests, nothing alters the exclusive authority given to-filie 7.oning=Board of.
Appeals to hear and decide variance requests.
`-^ -' 77.,nc o00 ornc •nan inner .lannn�]Fd Un-AONI ATV -:7T 1=36-ZT-uLIC'
KOPELMAN AND PAIGE, P.C.
Ms. Kathleen Bradley Colwell
Town Planner
November 21, 1997
Page 3
Conservation Commission Role
The third question appears to ask what role and authority the Conservation Commission
�\ has with respect to processing this subdivision request. In my opinion, the Conservation
Commission will conduct a review which is separate from that of the Planning Board and Zoning
Board of Appeals. The Conservation Commission will review the applicant's plan to ensure
cumpliance with the Tuwn's Wetlands Bylaw and State Wetlands Protection Act. The Planning
Board (and Zoning Board of.Appeals, if necessary) will review the plan with respect to the
Watershed Protection District Bylaw and all other applicable zoning and subdivision provisions,
rules and regulations.
Should you have further questions regarding this matter, please do not hesitate to contact
me.
Very truly yours,
Joel B. Bard
JBBIKAWatg
cc: Town Manager
Board of Selectmen
3 GB 18inandi9999
+- %- -+ 7v—r-1-- o00 one -nan -uJn--% ..taAODUW U1..AON dZ£=Zt 86-21-uleC
Herben P. Phillips. PC LAW OFFICES OF
Michael A. Gersrein ///•,'
Russe M. Holber T/llllUlS, 6ast6i, Holter & C&men
Russell S. Channen it
Jane M. Owens Triano
Ronald N. Beauregard 25 Kenoza Avenue 9 Haverhill, MA 01830
Kevin P. Rauseo Tel: (978) 374-1131 /(800) 457.6912 ■ Fax: (978) 372.3086
of counsel:
John T. Pollano
Gerald M. Lewis
October 20, 1997
William J. Scott
Director of Commurit, Development and Services
146 Main Street
North Andover, MA 01845
Re: Berrington Estates Subdivision
Dale and Appleton Streets
North Andover, Massachusetts
Dear Mr. Scott:
I had previously written to you on July 23, 1997 stating the position of my client, MPG Realty
Corp., and its desire to proceed with the above referenced subdivision.
I am enclosing a further copy of such correspondence and am requesting again that Town Counsel
issue an opinion, consistent with the position I have taken, that no further access points to the
above property would be necessary.
I would be more than happy to contact Town Counsel directly, although I am requesting that yoti
proceed as quickly as possible to obtain such opinion so that my client can proceed in its
endeavors.
Vecy tn>ly yours,
Michael A. Gerstein
MAG/If
cc: MPG Realty Corp.
Elmer Pease
Kathleen Bradley Colwell
All attorneys admitted in Massachusetts.
Holber, Beauregard and Rauseo admitted also in New Hampshire.
Holber admitted also in Maine.
Other office: 32 Saco Avenue, P.O. Box W, old orchard, ME 04064 Reply to Haverhill oNlce only
Herbert P. Phillips. PC.
Michael A. Gersten
Stuart M. Holber
Russell S. Channen
Jane M. Owens Triano
Ronald N. Beauregard
K"n P. Rauseo
OJ Co ----
John T. Pollano
LAW OFFICES OF
T/4s, 60-ske ,? molter & Clown
. 25 Kenoza Avenue ■ Haverhill, MA 01830 ■ Tel. (508) 374.1131 ■ Fax (508) 372-3086
William J. Scott
Director of Community Development and Services
Town of North Andover
146 Main Street
North Andover, MA 01845
Re: "Smith Property"
Dale and Appleton Streets
North Andover, Massachusetts
Dear Mr. Scott:
r'
r'
••- Ju y 23, 1997
Please be informed this office represents MPG Realty Corp. relative to its desire to subdivide the
above property. I have received a copy of the letter of Kathleen Bradley Colwell, Town Planner,
dated April 24, 1997 relative to her position that my client would need another access point to the
property and, if not, would require a variance from the Zoning Board of Appeals. I have had
occasion to review my client's file, the Town of North Andover Zoning Bylaws, the Wetlands
Protection Bylaw, and the Wetlands Regulations for the Town of North Andover. I have also
examined the title to the property, and I am of the belief that town counsel will concur that a
variance will not be required. I am listing herewith my reasons and would request you submit this
letter to Town counsel for his/her review and comments. It is my client's further hope and desire
to proceed with the subdivision in an. expeditious manner, and I believe town counsel should be
involved to address these concerns currently.
Pursuant to the provisions of the Zoning By -Laws, and, in particular, Section 4.136 dealing with
"Watershed Protection District", it is stated,under 4: I36.2.f, "the provisions relating to the _
establishment of the Conservation Zone and the enlargement of the non -disturbance zone and the
non -disturbance zones shall only apply to lots recorded and registered after the date of the
enactment of this amendment." (October 24, 1994). Please be aware that the Smith Property in
.question was purchased March 25, 1960 as recorded at Book 912, Page 187 of the Essex North
District Registry of Deeds, a copy of which deed I am enclosing herewith.
It is certainly acknowledged that the North Andover Conservation Commission is empowered by
the Wetlands Protection Bylaw to preserve and protect the wetland resource area, and to adopt
All attorneys admitted in Massachusetts.
Holber and 8eauregard admitted also in New Hampshire.
Orders of Conditions which are necessary to regulate its responsibility. The Conservation
Commission does have the authority to waive strict compliance with its regulations, when in its
judgment, such action would be consistent with the intent and purposes of the Bylaw. I certainly
acknowledge that my client, as an applicant, has the burden of proving. that the grant of a waiver
is consistent with the intent and purposes of the Bylaw. I wish to further acknowledge that the
proposed subdivision and its current access points are in the non -disturbance buffer zone,
although the following uses shall be allowed within such zone only by Special Permit, issued
pursuant to Section 4 of the Watershed Protection District Bylaw.
I . Any activities which cause a change in topography or grade;
2. Vegetation removal or cutting, other than in connection with agriculture uses or
maintenance of a landscape area.
5. Any surface or subsurface discharge, including but not limited to storm water runoff,
drainage of any roadway that is maintained by the Division of Public Works or any private
association; outlets of all drainage swales; outlets of all detention ponds.
You should be aware that the current roadway that is used and would be proposed to be used to
access the property has a width of between thirty (30) and forty (40) feet. Correspondingly, the
shoulders of the roadway are thirty eight (38) to fifty (50) feet. The slopes therein are currently
eroding and partially treated, and the degradation of the adjoining or abutting wetlands are
affected during heavy rains by the sediment from the soil in the slopes. Based upon such
situation, the improvement to the roadway would greatly reduce the erosion and would serve to
better direct. and treat any storm water runoff. The addition of a paved roadway, which is further
proposed as part of such subdivision, with a closed drainage system directed to a treatment swale,
would further reduce TSS counts to DEP acceptable levels.
From a further review of all documentation'. I believe it is fairly clear that the Conservation
Commission is allowed to permit the construction and maintenance of a new roadway or
driveway, of minimum, legal and practicable width, acceptable to the Planning Board dimensional
standards "where no alternate means of access from tri *existing public or private way to an upland
area of the same ownership is available." As has been previously mentioned herein, the property
has been held in the same owner since 1950, and thus was in existence prior to the effective date
of October 24, 1994. When reviewing such matters in its entirety, and reviewing the burden of
proof requirements, whereby an applicant must prove by a preponderance of the evidence that the
work proposed in the application shall not -pave arkunacceptable significant and/or
cumulative affect upon the wetland values protected by this Bylaw, I would contend that a
variance would not be required. Furthermore, since tyle access road in existence would be
acceptable as. a single lot, it should not lose its applicability and availability for subdivision
purposes.
It is important to note in reviewing the Zoning Bylaws that "the Special Permit Granting
Authority (SPGR) under this Bylaw shall be the Planning Board. Such Bylaw was clearly
intended to allow the. Planning Board and not -the Zoning Board of Appeals to make a
determination with regards to proposed subdivisions, and. I would suggest that Tows-t_.Counsel t, .
review that in detail.
think it useful to note, from my review of the title, that a subdivision was formerly approved by
Board in March, 1957 for the site with the plan recorded at the Essex North District
the Planning ,
ist of Deeds, on April 2, 1957, listed as Plan # 3442. The access points remain the same as
t. Reg ry
proposed in the current plan, which clearly evidences the intent to use such access points as a
ision purposes. While I must clearly acknowledge that
means of entering the property for subdiv
the Planning Board is not required to accept a new subdivision based upon one that existed a
I is importmi
ant in making a determination of the use of the site that
number of years ago. I think
the clear intent and purposes of such subdivision was to use the existing access points. The owner
who onginally intended to proceed with the subdivision was Lantern Corporation which, I
'4 1 understand, involves the Smith Family who are the current owners of the property, with the
previous subdivision formerly known as "Appleton Estates"
It is my sole intent and desire to expedite the subdivision process and allow for uses that are
clearly spelled out and allowed under the rules and regulations of the Town of North Andover.
MPG Realty Corp. is desirous of completing the plans for submittal of its Notice of Intent, and, as
well, prepare a definitive set of plans for submittal to the Planning Board, and I would appreciate
your having town counsel formulate an opinion, in light of the within submittal. .
MAG/lf
cc: MPG Realty Corp.
Elmer Pease
Very truly yours,
�
ichael A. Gerstein
DALE STREET - COMPLIANCE BRIEF & FINDING
I have carefully reviewed the Town of North. Andover's Zoning Bylaws -Reprinted
1996 and their Wetlands Protection Bylaw and Wetlands Regulations. 1 researched those
sections of the Bylaws that pertain to the Buffer Zone distances and requirements and
their interaction with our proposed development.
I reviewed several key sections that have, or could have some bearing on the
roadway that is proposed for the 7 lot residential subdivision. The following excerpts
were taken from the Bylaws and are the ones that are at the heart of this brief.
I have also included a copy of the deed to the property furnished by the attorney
who completed the title abstract. This deed shows that the property was a lot of record as
of March 25, 1960. This date, is of course, critical in the determination of whether or not
certain provisions of the Regulations and Bylaws affect this property.
After careful review of the Bylaws and Regulations, excerpted below and
highlighted, it is my opinion that the roadway we propose in its current location does not
require the submittal or finding of the Zoning Board of Appeals. Further, it is my
opinion, that the Conservation Commission has the authority and right to grant a waiver
to allow the roadway pursuant to Section I.E. Waivers From Regulations -Wetlands
Regulations, and the Planning Board to grant a Special Permit pursuant to the finding that
the property is a lot created prior to October 24, 1994 and pursuant to Section 4.136.3.c.i
and 4.136.c.ii of the Zoning Bylaws -Watershed Protection District, Town of North
Andover Zoning Bylaw -Reprinted 1996.
Pursuant to Section 4.136.1.d of the Watershed Protection District, the Special
Permit Granting Authority (SPGR),6'lall be the Planning Board. The Conservation
Commission has the jurisdiction and authority pursuant to Section 178.2 and 178.6 of the
Wetlands Bylaw and Section I.E of the Wetlands Regulations.
This finding supports the fact that the Planning Board and Conservation
Commission have the right and the authority to review and grant approval on this
subdivision without having to. acquire a variance from the Zoning Board of Appeals.
WETLANDS PI_tOTECTION BYLAW
Section 178.1 Purpose... The purpose of this Bylaw is to preserve and protect
the wetland resource areas (as specified in Section 2) and buffer zones of the Town of
North Andover by regulations of, and control of, activities (more particularly described in
Section 2 below) deemed by the Conservation Commission (the "Commission") to have
significant or cumulatively detrimental effect upon the following interests and values,
including but not limited to: public or private water supply; groundwater; the prevention
and control. of flooding, erosion, sedimentation, storm damage, and/or pollution;
protection of fisheries, wildlife, wildlife habitat, and recreation.,
Section 178.9—Rules and Regulations. The Commission shall be empo►vered to
adopt Rules and Regulations to govern its affairs, including, but not limited to, fees,
definitions, use of consultants, and such other information which it deems necessary to
discharge its responsibility. After due notice and public hearing, the Commission may
promulgate such rules and regulations to effectuate the purposes of this Bylaw, by a
majority of the duly appointed members.
WETLANDS REGULATIONS
Section I.B Purpose.The purpose of the North Andover Wetlands Protection Bylaw
(hereafter referred to as the "Bylaw") is clearly stated in the Bylaw. These Regulations
are promulgated to ensure fairness, to create a uniformity of process and to clarify and
define the provisions to the Bylaw, administered by the North Andover Conservation
Commission, hereafter call the "Commission".
Wetlands contribute to a number of public interests and are therefore protected by the
Bylaw. The Bylaw identifies three additional public interests not recognized by the Act.
These are: "prevention of erosion and sedimentation", "wildlife" and "recreation". Any
permit issued under the Bylaw and Regulations must therefore contribute to these public
interests.
Section I.E Waivers from Regulations. Strict compliance with these Regulations
may be waived when, in the judgment of the Commission, such action is consistent with
the intent and purpose of the Bylaws and these Regulations. the applicant shall have the
burden of proof that the granting of the waiver is consistent with the intent and purpose of
the Bylaws and these Regulations. The Commission shall act on the request and shall
provide to the applicant, either by certified mail or hand delivery, its written decision.
See Appendix 2 for a Waiver Request Form.
Section II Definitions.
2. The term "alter" shall include without limitation, the following actions when
undertaken in areas subject to the Bylaw:
a) changing of pre-existing drainage=eharacteristies, sedimentation patterns, flow
patterns or flood retention characteristics;
b) placement of fill, excavation or regrading;
C) destruction of plant life, including cutting and removing of trees or shrubs;
d) changing water temperature, biochemical oxygen demand or other physical or
chemical characteristics of water;
e) any activities, changes or work which pollute or cause displacement of any body
of water or groundwater;
f) any activities, changes or work which cause alteration of wildlife habitat.
3.The term "burden of proof" means the applicant shall have the burden of proving
by a preponderance of credible evidence that the work proposed in the application shall
not have an unacceptable significant andlor cumulative effect upon lite wetland valves
protected by this Bylaw. Failure to provide adequate evidence that the work proposed in
the application shall not have an unacceptable significant and/or cumulative effect upon
the wetland values protected by this Bylaw shall be sufficient cause for the Commission
to deny a permit or grant a permit with conditions.
Section VI Performance Standards and Supplement Documentation
A. Flood Standards.
B. Wildlife Habitat
C. Stormwater Management
D. Erosion Control
E. Wetland Replacement or Restoration
E.3. The Commission may permit the construction and maintenance of a new roadway or
driveway of minimum legal and practical width acceptable to Planning Board
Dimensional standards, where no alternative means of access from an existing public or
private way to an upland area of the same owner is available. Replication of altered
wetlands resources may be required by the Commission to minimize adverse impacts and
to protect the interests identified in the Bylaw.
WATERSHED PROTECTION DISTRICT
Section 4.136 2.f The provisions relating to the establishment of the Conservation
Zone and the enlargement of the Non -Disturbance Zones shall only apply to lots of
recorded or registered after the date of the enactment of this amendment (October 24,
1994). (1994/1 STM).
Table 1 - Lots created after October 24, 1994
Conservation Non -
Disturbance
From Annual High
Water Mark of
Lake Cochichewick
out to
From Edge of All
Wetland Resource
Areas Within the
Watershed District
out to
150' 250'
75' 150'
Non -
Discharge
400'
400'
Table 2 -Lots created on or prior to October 24, 1994
Non- Non -
Disturbance Discharge
From Annual High
Water Mark of
Lake Cochichewick
out to 250' 325'
From Edge of All
Wetland Resource
Areas Within the
Watershed District
out to 100' 325'
C. Non -Disturbance Buffer Zone
There shall exist a Non -Disturbance Buffer Zone within the Watershed Protection District
which shall consist of all land areas located between one hundred fifty .............
i. Allowed Uses: All of the Allowed Uses listed in Section 5(a)i of this Watershed
Protection District Bylaw are allowed in the Non -Disturbance Zone except as noted
below.
ii. Uses Allowed by Special Permit: The following uses shall be allowed within the
Non -Disturbance Buffer Zone only by Special Permit issued pursuant to Section 4 of this
Watershed Protection District Bylaw.
(1) Any activities which cause a change In topography or grade.
(2) Vegetation removal or cutting, other than in connection with agriculture
uses or maintenance of a landscape area.
(5) Any surface or sub -surface discharge, including but not limited to,
stormwater runoff; drainage of any roadway that is maintained by the Division of Public
Works or any private association; outlets of all drainage swales; outlets of all detention
ponds.
The current roadway that is used to access the property has a width of between 30-
40 feet. The shoulders of the roadway are 38-50+ feet. The slopes are currently eroding
and partially treated. The degradation of the adjoining or abutting wetlands are affected
during heavy rains by the sediment from the soil on the slopes.
The improvement to the roadway would greatly reduce the erosion, and better
channel and treat stormwater runoff. The addition of a paved roadway, with a closed
drainage system directed to a treatment swale would reduce TSS counts to DEP
acceptable levels. i-
.. dr-
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..•:"'�.•..
r.i —tom � __
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•
1;
Lot I Dale Street- Repetitive Petition
The Planning Board herein consents to allow the petitioner as set forth below to re -petition the Zoning Board of
Appeals. The petitioner is MPG Realty Corporation, 1 1 Old Boston Road, Tewksbury, MA 01376. The petition
was submitted on;March 12, 1999.
The Planning Board makes the following findings as required by MGL ch. 40/k Sec. 16 and North Andover ZoningBy-Law Section 10.8:
FINDINGS OF FACT:
1. On March 18, 1993, MPG Realty Corporation tiled a petition with the North Andover Board of Appeals
for a
variance from the requirements of Section 4. 136.2(b) and (f) and 4.136.3(d) to construct a roadway with all
required detail within the 75' conservation zone.
2. On April 15, 1993 the North Andover Board of Appeals voted to deny the petition because the applicant had not
met the requirements necessary for a Variance such as unique conditions oFsoils, slopes, and hardship.
On April 21, 1993 the North Andover Plannino Board voted to approve the Be:-ington Estates subdivision
located at Lot I Dale Street.
'. On iViarch 16, loop the North Andover Planning Board endorsed the approved subdivision plans.
The applicant submchain,-,esed specific and material chain, -,es to their application it dicatin , where their proposal ices
rhe requirements of the denial by the Zonin+2 Board_ soils slopes and hardship. Through their ne.v application
variance.
submittal they have provided information that addresses a more complete response to [he criteria set firth For a
Decision:
The Plannim Board has determined that specific and material change:; have occurred in the conditions upon which
the unfavorable decision was based, such as the following.
The submittal OF additional and more specific information indicates that the circumstances are related to the
reasons for the denial by the Zonin` Board which is the lack utevidence that there are conditions ut soils that
are unique to the lot and create hardship.
The subdivision plan has been approved and endorsed by the North Andover Plarnr,ins Board setting forth the
roadway for which the variance is requested.
The subdivision plan includes changes that will lessen the impacts on the waterShed and therefore reduce
impacts. These changes relating tom protection of the watershed are indicated in a leaer from PD Associates,
LLC Auburn N.H. dated March 4, 1998, as follows;
a•Catch basin 3A is moved outside the drivel.vay.
b. Removal ofsidewalks.
C. Moved leaching pits outside the 150 -Foot zone.;11\j „
d. Lawns will be outside the 100 -toot zone. u� S,G1� yr , ,a- t t+� :�`
e. Dentition basin will be outside the 75- S? G
foot zone. r'.L
A Permanent boundari is added to delineate the 75 -foot buffer zone.
°. v/i The stonewall at the entrance is reset. r 1
The Board votes to hereby recommend for allowing the applicant to reapply to the Zoning Board for the Varian
">[ I Dale S[r het — i�c pet!U':e ('r';; lion
�^.f13
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iij 1 ,UN 7 i!M
4-1 F
,_Z� :? / tpb
RECD V yE
JUN 1999
AND
C)"VER
CIONS E RVATICjq
1 SS O'N
Town of North Andover %V t NaRTH
OFFICE OF°
o�
COMMUNITY DEVELOPMENT AND SERVICES � a
\ i 30 School Street--. y
North Andover, ivlassachusetts 018-: = }
?r^1 LIANf 1. SCO TT
^crus=
Director ,.
NOTICE OF DECISION
rte; o U
Any appeal shall be filled
within (20) days after the -_
date of fillina this Notice
in the Office of the Town
Clerk.
Date April 21, 1999
Date of Hearing MArch 16, 1999 & Aoril 6, 1999
Petition of MPG Realty Corp. April 20, 1999
Premises affected Lot 1 Dale Street
Referring to the above petition for a special permit from the
requirements of the North Andover oni nct Bylaw Sectioo 10 g
so as to allow to determine whether there are specific and material changes in the
application for a Variance to allow a repetitive petition within 'a two year prohibition
After a public hearing given on the above date, the Planning Eeard
voted to APPROVE the SPECIAL PERMIT REPETITIVE PETITION
based upon the following conditions:
Signed�_L�''�c
CC: Director of Public Works Richard S.Rowen, Chairman
Euilding Inspector
Natural Resource/Land Use Planner Alison Lescarbeau, V. Chairman
Health Sanitarian
Assessors John Simcns. Clerk
Police Chief
Fire Chief Richard Naree11a
Applicant
Engineer Josech V. Mahoney
Towns Outside Consultant
File Plannina Ecard
Interested Parties
CONSER`i,aTION - (973) 63:1 930 • IIL_ALT1I - (973) (M3-9?4U P :1�+i+[:`rG - (973) 6Xi-993'
lit; 1[.11I��G (9EiICE - O":�) 6Ra-'�cJ< iii iNv ' IiU.1Rll
Lot 1 Dale Street— Repetitive Petition
l
The Planning Board herein consents to allow the petitioner as set forth below to re -petition the Zoning Board of
Appeals. The petitioner is MPG Realty Corporation, 1 l Old Boston Road. Tewksbury, NLS 01876. The petition
was submitted on March 12, 1999.
The Planning Board makes the following findings as required by MGL ch. 40A Sec. 16 and North Andover Zoning
By -Law Section 10.8:
FINDINGS OF FACT:
1. On March 18. 1998, NIPG Realty Corporation filed a petition with the North Andover Board of Appeals for a
variance from the requirements of Section 4. 136.2(b) and (f) and 4.136.3(d) to construct a roadway with all
required details within the 75' conservation zone.
2. On April 15, 1998 the North Andover Board of Appeals voted to deny the petition because the applicant had not
met the requirements necessary for a Variance such as unique conditions of soils. slopes, and hardship.
3. On April 21, 1995 the North Andover Planning Board voted to approve the Berrington Estates subdivision
located at Lot 1 Dale Street.
4. On Nlarch 16, 1999, the North Andover Planning Board endorsed the approved subdivision plans.
The applicant submitted specific and material changes to their application indicating where their proposal meets
the requirements ofthe denial by the Zoning Board- soils slopes and hardship. Through their new application
submittal they have provided information that addresses a more complete response to the criteria set forth for a
variance.
Decision:
The Planning Board has determined that specific and material changes have occurred in the conditions upon which
the unfavorable decision was based, such as the following:
The submittal of additional and more specific information indicates that the circumstances are related to the
reasons for the denial by the Zoning Board which is the lack of evidence that there are conditions of soils that
are unique to the lot and create hardship.
The subdivision plan has been approved and endorsed by the North Andover Planning Board setting forth the
roadway for which the variance is requested.
The subdivision plan includes changes that will lessen the impacts on the watershed and therefore reduce
impacts. These changes relating tom protection of the watershed are indicated in a letter from PD Associates,
LLC Auburn N.H. dated March 4, 1995, as follows;
a. Catch basin 3A is moved outside the driveway.
b. Removal of sidewalks.
C. Nloved leaching pits outside the 150 -foot zone.
d. Lawns will be outside the 100 -foot zone.
e. Dentition basin will be outside the 75 -foot zone.
f. A permanent boundary is added'to delineate the 75 -foot buffer zone.
g. The stonewall at the entrance is reset.
The Board votes to herebv recommend for allowing the applicant to reapply to the Zoning Board for the Variance.
Lot I Dale Street— Repetitive Petition
TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
Joel Bard
Kopelman & Paige
31 St. James Avenue
7`h Floor
Boston, MA 02116-4102
Dear Attorney Bard:
May 29, 1998
This is in regards to our conversation on May 28, 1998, on the application from MPG Realty
Corp. The Chairman, William J. Sullivan, has asked for your written opinion.
The applicant was denied variances from the previous application and has appealed the decision of
the Zoning Board of Appeals. The applicant has since gone before the Planning Board with a Repetitive
Petition. The decision on the Repetitive Petition has not been made or filed with the Town Clerk.
Please provide the Zoning Board of Appeals with a written decision on the ability of the applicant
to come before the Board with the appeal pending on the previous application. Our next meeting has been
scheduled for June 9, 1998.
For your convenience, enclosed are copies of both applications.
Your attention in this matter is greatly appreciated.
/je
enc.
Very truly,
A� -11171--I
Walter F. Soule, Vice Chairman
Zoning Board of Appeals
TOWN OF NORTH ANDOVER
OFFICE OF
TOWN CLERK
120 MAIN STREET
NORTH ANDOVER, MASSACHUSETTS 01845
Joyce A. Bradshaw 3? c�
Town Clerk ° , ;, Telephone (978) 688-9501
W * FAX (978) 688-9556
DATE:
ADDRESSEE:
NAME:' -ems G�
FIRM: qi� 100ezI C
STREET:
CITY:
FAX NUM: A iaD - /-05-/—��
FROM:
NAME: JOYCE A. BRADSHAW
DEPT.: TOWN CLERK
120 MAIN STREET
NORTH ANDOVER, MA 01845
TELEPHONE: (508) 688-9501
FAX NUMBER: (508) 688-9556
TOTAL NUMBER OF PAGES, INCLUDING COVER LETTER:
ADDITIONAL COMMENTS: "�A ZED
uhf s✓�
Post -It'°" brand fax transmittal memo 7671
#of pages ►
To oe"I
From
Co.
Co.
Dept.
Phone #
Fax# � �- /�
Fax#
PRINCIPAL POINTS
�qsl SSS
Property has been endorsed as an eight (8) Lot Subdivision, with 2 -cul-de-sac roadways.
Seven (7) of the lots are buildable and one (.1) is for conservation only.
2. Property has two existing means of access. The Westerly most access is currently used as
a roadway for ingress and egress to the property. Both the east and west accesses have
existing culverts that allow drainage under the current conditions. Culverts will remain
after roadway improvements. (Exhibit "1")
3. Both access points are in close proximity to bordering vegetated wetlands (BVW). Both
access points are within the 75' foot conservation buffer of the Watershed Protection
Bylaw, as determined by the Planning Board. (Exhibit "2")
4. There is no reasonable alternative access point. Homes and other BVW areas surround
the site. (See Exhibit "3" for Alternative Access Report)
5. Current property owners abutting the subject parcel have driveways or contiguous
boundaries for alternative access that fall within the 75' foot conservation buffer.
6. Due to the soils conditions as shown in Exhibit "1", other access to the property is
unavailable.
7. The unusual shape of this parcel, fronting on Dale Street in two locations of 50 +/- and
186+/- feet does not have direct access as do many home that are already built. Direct
access in the neighborhood as they currently exist affects the subject parcel not generally
affected by these abutting properties.
8. A literal enforcement of the Bylaw would unjustly create a legal, equitable and financial
hardship as no reasonable use could be granted without benefit of access through the
current westerly access point.
9. There is no filling of wetlands proposed or approved for this access. The Conservation
Commission determined that there would be no adverse impact as a result of this project.
The Conservation Commission, their engineer and the Administrator thoroughly
reviewed and approved this project. The Order of Conditions are attached as Exhibit "4".
10. The Planning Board/Special Permit Granting Authority (SPGA) approved the Definitive
Subdivision Plan and the required Special Permits for this project. The Board, their
engineer, Department of Public Works and Planner thoroughly reviewed this project and
determined there would be no adverse impact. The Conditions of Approval and the
Special Permit are attached as Exhibit "5".
11. Granting relief would allow access not otherwise available. This would not cause
substantial detriment to the public good and nullify or substantially derogate from the
spirit and intent of the Bylaw. Additional information from Attorney Joel Bard, Attorney
Michael Gerstein and Elmer A. Pease, II is attached as Exhibit "6'.
71")
rte, le, 4
Herbert P. Phillips, P.C. r. ;
Michael A. Gerstein L �." ' ` ` LAW OFFICES OF
JOYCE cEf Q,'.: �
Stuart M. Holber TOWN /7 a /� Q Mwwn
Russell S. Channen M RTN • S / �pr(��p//,] / el er (U
Jane M. Owens Triano a N n f {+IVI)[a u Iif� III J ate►
Ronald N. Beauregard
Kevin P Rauseo MAY 7t , 25 Kenoza Avenue ■ Haverhill, MA 01830
23 if�i` () 374-1131 / (800) 457-6912 ■ Fax: (978) 372-3086
Of Counsel:
John T. Pollano
Gerald M. Lewis
May 7, 1998
Town of North Andover
Town Clerk's Office
146 Main Street
North Andover, MA 01845
Re: MPG Realty Corp. v. Walter F. Soule, et al, as members of the Zoning Board of Appeals
for the Town of North Andover
Dear Sir/Ms:
Kindly find enclosed herewith Comolaint. filed with the Land Court on May 7, 1998, appealing the
denial of a variance in the above matter. Such notice is given to you as required by M.G.L.
Chapter 40A, Section 17.
Very truly yours,
Michael A Gerstein
MAG/If
cc: MPG Realty Corp.
All attorneys admitted in Massachusetts.
Holber, Beauregard and Rauseo admitted also in New Hampshire.
Holber admitted also in Maine.
Other office: 32 Saco Avenue, P.O. Box W, Old Orchard, ME 04064 Reply to Haverhill office only
COMMONWEALTH OF MASSACHUSETTS
TRIAL COURT OF THE COMMONWEALTH
SUFFOLK, ss LAND COURT DEPT.
DOCKET NO.: �l 93� q
r
MPG REALTY CORP.
V.
WALTER F. SOULE, RAYMOND
VIVENZIO, SCOTT KARPINSKI,
WILLIAM SULLIVAN, ROBERT
FORD, JOHN PALLONE,
ELLEN McINTYRE, AND GEORGE
EARLEY, as members of the Zoning Board
of Appeals for the Town of North Andover
Massachusetts
COMPLAINT FOR JUDICIAL REVIEW OF
DENIAL OF VARIANCE; PETITION FOR
JUDICIAL DETERMINATION OF
VALIDITY OF ZONING ORDINANCE; AND
COMPLAINT FOR DECLARATORY
JUDGMENT
JURISDICTION
Jurisdiction is conferred upon this Court to annul the decision of the Zoning Board of Appeals
for the Town of North Andover (hereinafter sometime referred to as "Board"), pursuant to
M.G.L. Chapter 40A, Section 17. Jurisdiction is further conferred upon this Court to issue a
Declaratory Judgment, pursuant to M.G.L. Chapter 231A, and for Judicial Determination of
Validity of a Zoning Ordinance, pursuant to M.G.L. Chapter 240, Section 14A.
PARTIES
1. Plaintiff, MPG Realty Corp., (hereinafter referred to as "MPG"), is a corporation duly
organized by law, having a principal place of business at 11 Old Boston Road,
Tewksbury, Middlesex County, Massachusetts. At all relevant times hereto, MPG has
sought to develop the land more particularly described as Lot 1, on Map 37B on Dale
Street, in the Town of North Andover, Essex County, Massachusetts (hereinafter referred
to as "the Lot"). The Lot is owned by Gwendolyn C. Smith, (hereinafter referred to as
"Smith") pursuant to a Deed conveyed to her and her late husband, R. Ashton Smith,
from Lantern Corporation dated March 25, 1960 and recorded at the Essex North District
Registry of Deeds at Book 912, Page 187, a copy of said Deed being annexed hereto as
"Exhibit A".
2. Defendant, Walter F. Soule is a member of the Zoning Board of Appeals and resides at 70
Raleigh Tavern in North Andover, Essex County, Massachusetts.
3. Defendant, Raymond Vivenzio is a member of the Zoning Board of Appeals and resides
at 11 Appledore Lane, North Andover, Essex County, Massachusetts.
4. Defendant, Scott Karpinski is a member of the Zoning Board of Appeals and resides at
691 Forest Street, North Andover, Essex County, Massachusetts.
5. Defendant, William Sullivan is a member of the Zoning Board of Appeals and resides at
405 Salem Street, North Andover, Essex County, Massachusetts.
6. Defendant, Robert Ford is a member of the Zoning Board of Appeals and resides at 89
Bear Hill Road, North Andover, Essex County, Massachusetts.
7. Defendant, John Pallone is a member of the Zoning Board of Appeals and resides at 67
Vest Way, North Andover, Essex County, Massachusetts.
8. Defendant, Ellen McIntyre is a member of the Zoning Board of Appeals and resides at 23
Tanglewood Lane, North Andover, Essex County, Massachusetts.
9. Defendant, George M. Earley is a member of the Zoning Board of Appeals and resides at
125 Lyman Road, North Andover, Essex County, Massachusetts.
ACTS AND EVENTS UPON WHICH THIS ACTION IS FOUNDED
COUNT
(Judicial review of denial of Variance, pursuant to M.G.L. Chapter 40A, Section 17.)
10. On February 12, 1998, MPG submitted an application for a request to determine the
applicability of Section 4.136.3 (d) (ii) as it pertains to a lot of record prior to October 24,
1994, and, if applicable, a variance from this Section to construct a roadway with
required details, within the seventy-five (75) foot Conservation Zone, a copy of such
initial application with supporting documentation being annexed hereto as "Exhibit B".
11. Smith authorized MPG to file such petition pursuant to the owner's affidavit annexed
hereto as "Exhibit C".
12. MPG had previously appeared before the Planning Board for the Town of North Andover
(hereinafter referred to as "Planning Board") seeking approval of an eight (8) lot
residential subdivision for the Lot. MPG, through its representatives, raised the issue of
access to the Lot pursuant to Section 4.136.3 (d) (ii) and its exemption pursuant to
Section4.136.2 (f) and Table 2. MPG asserted that a way, roadway and/or public way
were not applicable. The Planning Board raised the issue of considering the roadway
upon recording to be a Lot under 4.136.2 (f) and Table 1.
13. The configuration of the Lot is shown on the map annexed hereto as "Exhibit D". MPG
questioned whether the Zoning Board of Appeals had jurisdiction to render an opinion on
a variance request, pursuant to Section 4.136.2(f) of the ByLaws for the Town of North
Andover (hereinafter referred to as "By Laws"), since said provision applies to lots
(emphasis added) recorded or registered after the date of the enactment of such
Amendment, that being October 24, 1994, a copy of said provision being annexed hereto
as "Exhibit E".
14. On July 23, 1997, MPG, through its counsel, submitted a letter to William J. Scott,
Director of Community Development and Services questioning the applicability of such
provision, a copy of said letter being annexed hereto as "Exhibit F".
15. On February 25, 1998, MPG and its real estate consultant met with the Acting Chairman
and a member of the Board. After considerable discussion regarding the content and the
request sought, MPG voluntarily agreed to withdraw its application from consideration
before the Zoning Board of Appeals meeting, scheduled for Marc 10, 1998. MPG agreed
to refile its application with more specific language as recommended by the Board's
members at such February 25, 1998 meeting.
16. On March 10, 1998, the Board, at its regularly scheduled meeting, approved the
withdrawal of MPG's application without prejudice, pursuant to a letter from MPG's
consultant, a copy of said letter being annexed hereto as "Exhibit G".
17. On March 17, 1998, MPG appeared before the Planning Board seeking approval of its
subdivision and was informed by said Planning Board, that any subsequent approval of
such subdivision would require either a grant of a variance by the Zoning Board of
Appeals or a determination of the inapplicability of such provision for variance purposes.
The Planning Board closed the public hearing and considered all planning issues satisfied
and required MPG to acquire the variance to complete what it determined to be the one
outstanding Zoning issue remaining.,
18. On March 18, 1998, MPG, as applicant, with the concurrence, approval and at the
direction of Smith, applied for a variance from the requirements of Section 4, Paragraphs
136.2 (b)(iv), 136.2 (f) and 136.3 (d) and Table 1 and 2 of the Zoning ByLaws of the
Town of North Andover, if applicable (emphasis added), a copy of such application
being annexed hereto as "Exhibit H".
19. The relief sought on such application was to build a roadway with all required details,
within a seventy five (75) foot Conservation Zone, if applicable. The principal points
upon which MPG filed this application were based upon the Lot having two existing
accesses with culverts, one of which was currently openly being used. Furthermore, there
were no other reasonable means of access available, and the determination of
applicability and/or the granting of such relief would allow access to the Lot not
otherwise available.
20. MPG contended throughout the meeting that relief was not necessary, pursuant to Section
4.136.2 (f), Table 2, and requested on a number of occasions for the Board to determine
that•Thearoadway did not fall within the purview of Section 4.136.2 (f) Table 1 and that a
variance was not necessary. MPG further requested, through its attorney and real estate
consultant, that if the Board felt that if such provisions of the ByLaws were applicable,
that a variance should be granted and testimony, to that effect, was presented in full,
complete and total detail to the Board.
21. MPG repeatedly requested, throughout the hearing, for a determination by the Board
whether or not Section 4.136.2 (f) Table 1 was applicable. Despite such request, the
Board did rule on the request and did not consider the substantial evidence submitted
under the guidelines requested by the Acting Chairman from the submittal of the
February 12, 1998 and March 18, 1998 applications. All such evidence was to be
reviewed and considered prior to the April 14, 1998 hearing.
22. Prior to the regular meeting of the Board set for April 14, 1998, MPG, through its
counsel, submitted a Memorandum in support of its application, a copy of such
Memorandum being annexed hereto as "Exhibit F'.
23. On April 14, 1998, a meeting was held by the Board at which time Defendants, Soule,
Vivenzio, Karpinski, McIntyre and Earley were present.
24. The Board denied MPG's request for a variance but made no determination as the
applicability of Section 4.136.2 (f) as requested in such application, and on a number of
occasion during the meeting.
25. On April 21, 1998, the Board filed its decision with the Office of the Town Clerk, a
certified copy of such decision being annexed hereto as "Exhibit J", as required by
M.G.L. Chapter 40A, Section 17.
26. The Board exceeded its authority' failed to render a decision properly and acted
arbitrarily in denying MPG's request for a variance and, in further refusing to act on the
question of applicability of such Town By Law.
27. MPG's requested variance was in conformity with the requirements for a variance, as
provided for in M.G.L. Chapter 40A, Section 10 and the Town of North Andover Zoning
ByLaws, Section 10.4 in that substantial hardship existed, that such relief would not
substantially derogate the intent or purpose of such ByLaw and further, that such hardship
was not created by MPG or Smith. The decision of the Board to deny MPG's application
for a variance, and not determining the applicability of Section 4.136.2 (f) is inconsistent
with the objectives of the Zoning ByLaws of the Town of North Andover and exceeds the
authority of the Zoning Board of Appeals wherein it disregarded the weight of the
evidence proving hardship and the construction of such Zoning By Laws. The decision
of the Board to ignore MPG's request for the applicability of 4.136.2 (f), Tables 1 & 2,
and if deem applicable, a variance is inconsistent with the duties of the Board and the
objectives of the Zoning ByLaws of the Town of North Andover.
28. Further, this action exceeded the authority of the Board wherein it wantonly disregarded
the weight of the evidence proving hardship and the construction of such Zoning ByLaw.
Such decision further prevents full and complete use of the Lot.
COUNTII
(Declaratory Relief pursuant to M.G.L. Chapter 231A)
29. Plaintiff restates and reavers the allegations contained in Paragraphs 1 through 28 as if
fully set forth herein.
30. A dispute now exists between MPG and Defendants as to the interpretation of the
Watershed Protection District of the Zoning ByLaws of the Town of North Andover and
its applicability to the Smith property located on Dale Street, North Andover, known as
Map 37B, Lot 1 on said Town maps, on which the Lot MPG seeks to develop an eight (8)
lot residential subdivision.
31. The Lot is in Zoning District R-1 and the premises affected have an area of 1,305,493
square feet, as shown on the map referenced hereinabove and listed as Exhibit D.
32. Until such time as the actual controversy as. to the applicability of Section 4.136.2 (f) to
Plaintiff's use of the existing driveway for access purposes is determined, MPG will not
be able to access or subdivide the Lot and proceed with a residential subdivision as
intended.
33. On April 21, 1998, the Planning Board approved an eight (8) lot residential subdivision,
subject to the acquisition of a variance from the Zoning Board of Appeals. Said decision
is date stamped April 22, 1998 and is annexed hereto an Exhibit "K".
34. On April 23, 1998, the Planning Board approved a Special Permit from the requirements
of the North Andover Zoning ByLaws, Section 4.136 (b), (c), and (d) in the Watershed
Protection District so as to allow MPG to build a roadway, waterline and detention basins
within the Non -Discharge, Non -Disturbance and Conservation Buffer Zones. Said
decision is date stamped April 23, 1998 and is annexed hereto as "Exhibit L".
35. Pursuant to the provisions of the Zoning ByLaws and, in particular, Section 4.136,
dealing with the Watershed Protection District, it is stated under 4.136.2 (f) "the
provisions relating to the establishment of the Conservation Zone and the enlargement of
the Non -Disturbance Zone shall only apply to lots recorded or registered after the date of
the enactment of this Amendment" (October 24, 1994).
36. The Lot was purchased by Smith on March 25, 1960 thereby exempting the Lot from the
above mentioned provision. The proposed subdivision and its current access points are in
the Non -Disturbance Buffer Zone with the following uses to be allowed by Special
Permit within such zone, only by Special Permit, pursuant to Section 4.136.2 (c) (ii) of
the Watershed Protection District ByLaw;
I . Any activities which cause a change in topography or grade;
2. Vegetation, removal or cutting other than agricultural uses or maintenance of a
landscape area;
5. Any surface or subsurface discharge, including but not limited to stormwater
runoff; drainage of any roadway that is maintained by the Division of Public
Works or any private association; outlets of all drainage swales; outlets of all
detention ponds.
37. The Special Permit Granting Authority, pursuant to the ByLaws for the Town of North
Andover is the Planning Board, thus making such Planning Board, based upon the
existing ByLaw, the proper Board to make the determination as to the access to the Lot.
38. The specific matter in dispute is as follows:
The applicability of Section 4.136.2 (f) and whether or not the Zoning Board of
Appeals should have acted upon the applicability prior to any consideration of a
variance or request.
39. This action is brought under Chapter 231 A of the Massachusetts General Laws and MPG
Realty Corp. is seeking a Declaratory Judgment as to the applicability of provisions of the
Zoning By Laws.of the Town of North Andover and whether the Zoning Board of
Appeals has jurisdiction to render a decision on the variance.
COUNT III
JUDICIAL REVIEW FOR DETERMINATION OF VALIDITY OF ZONING ORDINANCE
PURSUANT TO M.G.L. CHAPTER 240, SECTION 14A
40. Plaintiff restates and reavers the allegations contained in Paragraphs 1 through 39 as if
fully set forth herein.
41. Defendants, Walter Soule, Raymond Vivenzio, Scott Karpinski, Ellen McIntyre and
George Earley, are duly authorized and acting members of the Zoning Board of Appeals
of the Town of North Andover, charged in their official capacities with the duty of
administering and enforcing the provisions of the Zoning ByLaws of the Town of North
Andover and, in particular, Section 4.136.2 (f), which By Law was in full force and effect
at all times material hereto. -
42. Section 4.136.2 (f) states in part, "the provisions relating to the establishment of the
Conservation Zone and the enlargement of the Non -Disturbance Zone shall only apply to
lots recorded or registered after the date of the enactment of this Amendment" (October
24, 1994).
43. Section 4.136.2 (f) is inapplicable as applied to the Smith lot in that the Lot was
purchased by Smith on March 25, 1960. Defendant Members of the Board of Appeals
failed to vote upon the applicability of such provision to the proposed subdivision by
MPG and further refused to consider all evidence and factors in support of MPG's
position thereupon.
44. Unless granted the relief sought herein to determine such provision inapplicable, MPG
will suffer irreparable injury by the enforcement of said section since said Defendants
failed to grant the required relief to allow MPG to use the existing driveways with
culverts as access to the Lot. For the reasons set forth above, a real controversy exists
between Plaintiff and Defendants regarding their respective rights and duties under the
provisions of the By Laws, as applied to the Lot.
WHEREFORE, MPG requests:
a. The Board of Appeals decision denying Plaintiff, MPG Realty Corp.'s application for a
variance be annulled;
b. For Declaratory Judgment declaring that the provisions of Section 4.136.2 (f) Table 1 are
inapplicable'to the lot described as Map 37B, Lot I and that Table 2 is applicable and
therefore the Lot falls within the Non -Disturbance Zone and is deemed inclusive under
the Planning Board's Special Permit.
C. That this Court issue a judgment declaring Section 4.136.2 (f) inapplicable to the above
described Lot; that the Board of Appeals be permanently enjoined from enforcing or
attempting to enforce Section 4.136.2 (f) against MPG and its request to subdivide said
lot;
d. Plaintiff be entitled to damages and costs incurred in this action; and
e. Such other further relief as this Court deems reasonable and just.
MPG Realty Corp.,
By its attorney,
Michael A. Gerstein, Esq.
Phillips, Gerstein, Holber &Channen
25 Kenoza Avenue
Haverhill, MA 01830
(978) 374-1131
BBO# 190040
t LAj rER., CURPURAYl UN
Conunonwealth of D'.assachusetts
a curl) ration duly established under the laws of
and having its usual place of business at Lexington
�. County, Massachusetts, for consideration paid
Middlesex
husband and wife as
grant to R. Ashton Smith and t;wendole'n C. Smith,
Tenants by the Entirety
°f North Andover, . h.ssex County, Massachusetts
with gatlrlatm raarnantil
thA34Mn ,wa certain parcels of land situated off Dale Street in
t•'. "
as follows
said North Andover, bounded and described
�r^ �DesripYoo rod recumbrreep. it ..,1
f
YA1t:EL N0. L beginning at the Northwesterly corner of land now
or formerly llillner, being shown as Lot No. 17 A on"Plan of
Appleton 'states, ;ale Street, North :.ndover, Mass. owner, Lantern'
Corp., Engineer, Ralph B. Brasseur, March 27, 1957" said plan
being recorded in.the North District of �ssex.ltegistry of Deeds as
Plan No. 3442; thence running Northerly by a stone wall and land
of Cadogan seven hundred forss to
and 04/LGO feet mo
or Lerunnin
an iron pipe at land of
Leland as shown on said p thence, g
�i Easterly by a stone wall forming the Northerly boundary of Lot No. 2U
on said plan and by a ditch forming the Northerly
lboundary
oun areaid Leland
No. 21 and 22 on said plan; of Lots
thence Andover,nl,
by Daniel
`.' as shown on "Plan of Land in North Andover,
Mass. owned by
E. Hogan Jr., Feb=nary 29, 1956" recorded in the :'forth District of
;` lissex Registry of Deede as rlan No. 3206 a total distance of 2,025
feet more or less -to the car ner of plan; thence wall aturningt land oand running
Miller as shown on said last named p a stone wall, three
Southerly and by said Land of ,tiller in part by
hundred ninety
as shown on said last -one and 46/lUu feet to other Land of Robert Ptiller
named plan; thence rutining Westerly by the
as shown
boundary of land of Robert killer, Philip Miller, White
and win ;field as shotm on said last named plan, Ave hundred eighty
and 91/LOU feet to a stone wall ac Land of Sanborn on said plan;
land of
thence turninO and runnin;; Northerly byluliiefeetnta, the Noall rth asterly
Sanborn, one hundred twenty-nine and SU/ t.tence turning
i corner of said Sanborn land, as shown un said plan;
and running Westerly by t(te Northerly boundary of land of Sanborn and
Peters as shown on said plan, two hundred eighty three feet to an
iron pipe at the Northwesterly corner of Land of said reters;_tnence
turning and running Southerly by the '.festcrly line of said reters land
-as shown on plan recorded No. 3442 referred to above, a distance of
silown on
four hundred thirty-nine and 5./100 feet to .)ale Street
aastonewall
said last named plan; thence running about .4esterly by
t as shown on said last named plan in several courses
and Dale stree
[+ measuring forty-seven and 74/LUU feet, fifty
toea�stone
thirty six and Su/LOU feet and fifty g general
bound as shown on said elan; thence turning and running in a
Northerly direction by the curve of a proposed road as s.. ahd three
on said
plan in two courses, measuring twenty-six and 4.)/lU0 feet an
06/ILK.)feet to a stone bound at tt�e llanhethenceY
hundred thirty and 06/lU
corner of land of And
as shown on said last
aboundmof land of
turnin_ and runnin; :lesterly by the C:ortherly
' Andresen, Kirkham and Foss
three hundred and forty-one feet to land:
Cy of said grantee marked n.A. Smith on said plan; Lhence turning and
r�,t\ortherly by land of said grante
unnine ninety-five feet tnthence,
I or less'to the Northeasterly corner at
lanofsSmith•as•shown honasaid plan
turning. and running ;Jesterly by
b Lwo 'hundred eibttty-eight and 44/1,U feet to a point; thence turning
. a curve having a radius
and runnin; in a Southwesterly didistance o ht two
of three hundred seventy feet, a distance of two hundred gig y-
and 92/LUU feet to a drill hole in a stone wall at Dale itreet as
Y shown on said plan;
thence turning and running Northwesterly by
a stone wall and,oale Street eighty-five feet more or less to a atone
shown On said
bound in the Southeasterly corner of Lot No. 17 A sa ttteoutheasterly
plan; thence in a general Northeasterly direction by
y thirt one and 42/100
boundary of Lot 17 A in three courses meeauring Y -
feet, ninety-four and �3/Lc,U feet coTdeTneolhsaddeLoChl7Ayaswshown on
i5/100 feet to the Northeasterly
'rs
In mitluos w4rrruf, the said 1-e.NTP.RN CORPORATTUN
has caused its corporate seal to be hereto affixed and these presents to be signed, acknowledged and
delivered in its name and behalf by ' George H. Matheson, Jr.
Treasurer
its President andhereto duly authorized, this twenty-fifth
day of March in the year one thousand nine hundred and sixty
Lj
I ri
Signed and sealed in presence of
LANTERNCORPURA'1'IUN :•',�• .
.. `
sident and 'Treasur
u14e (IIommonmemltq of Mmoaarhngella
Essex ss• March 25, 1960
Then personally appeared the above named George H. Matheson, President Treasu
and. acknowledged the foregoing instrument to be the free act and deed of tfie LANTERI, CORPURATiON
before me /
,Charles i;. Hatch Nbli—'
October 22, 1p6u
Yr aommiWm npv
Essex,ss. Recorded nar. 251 1960 at 35m past 12P.M. •`,-`598
said plan; thence turning and running Northwesterlyby Lt 17 A on
g•
hundred six and 49/100 feet to the pointobeginning.
said plan three
Containing 30 acres more or less.
9 1 ?
:'AnCEL II Being shown as Lot No. 16 on the Southerly side of Dale
"Plan of Land in North
tsaid in tiortll Andover on Plan entitled
breT e:
by i)anielL. Mogan Jr. February 9, 1956. Said
�.8 8''
Andover, Mass. owned
plan being recorded in said rel*istry as Plan No. 3236, said premises
follows:
+.
being more p articularly bounded 'Ind described as
fifty feet more or less by Dale Street;
,
NV','1'tlEASTLY two hundred
S3UTIlGP1STcRL'f one hundred sixty eight feet more or less by Lot
M�
t:u. 15 on said plan and
now
SOtJ'T►ITdES'PLRLtomhundred twenty two
twofrerly
oand
NewEnglandCompany assshownl
or Power
said plan.
Containing 21,5Ju square feet more or less according to said plan.
Being part of the premises conveyed to the Grantor Corporation
E. i'ogan Jr. et ux dated April 16, 1956, recorded
by deed of Daniel
'
in said Registry, dook 331 Page 306.
l
Said premises are conveyed subject to a•taking by the Essex
of Dale Street, recorded in
County Commiedionere for the relocation
said Registry, dock 098, :age 435, in so far as the same affects the
Iwithin
described premises.
•
Meaning and intending, and hereby conveying to the grantees of
of record the name of
t;7
i
all the land in North Andover now standing
ed
Lantern Corporation whether or not the same is included within the
boundaries of tlue above described parcels.
Said premises are conveyed subject to the taxes fur the current
year which the grantees herein assume and agree to pay.
The grantor corporation herewith conveys to the said grantees any
of the Taking
and all rights to damages which it may have as a result
referred to above.
{;? hnachr .c;ts Decd Excise Stamps
!+
{
U. S. Cedernl Revenue Stamps—
d
}:
in sum of S _11.10___-'-- nf`;l ; ;t c;u:,:cii�.: ou this
'
ofa':ed ::sit C1.11ceNed Un tins
In::trll like 11 t.
instrummnt.
,,.2
In mitluos w4rrruf, the said 1-e.NTP.RN CORPORATTUN
has caused its corporate seal to be hereto affixed and these presents to be signed, acknowledged and
delivered in its name and behalf by ' George H. Matheson, Jr.
Treasurer
its President andhereto duly authorized, this twenty-fifth
day of March in the year one thousand nine hundred and sixty
Lj
I ri
Signed and sealed in presence of
LANTERNCORPURA'1'IUN :•',�• .
.. `
sident and 'Treasur
u14e (IIommonmemltq of Mmoaarhngella
Essex ss• March 25, 1960
Then personally appeared the above named George H. Matheson, President Treasu
and. acknowledged the foregoing instrument to be the free act and deed of tfie LANTERI, CORPURATiON
before me /
,Charles i;. Hatch Nbli—'
October 22, 1p6u
Yr aommiWm npv
Essex,ss. Recorded nar. 251 1960 at 35m past 12P.M. •`,-`598
ALTERNATIVE ACCESS REPORT
October 211997
Location: 1 Dale Street, North Andover, MA
Pur ose Access for a proposed 7 lot Subdivision -Berrington Place
I have been asked by the applicant, MPG Realty Corp., of 11 Old Boston Road,
Tewksbury, MA 01876 to prepare a report on the feasibility of an alternative access to the
subject property proposed as a 7 ms several months ago by t subdivision knwn as Berrington
Kathleen Colwell,/ uesthet
is pursuant to a review comment ade
Planning Director of the Town of North Andover to Mr. Kenneth Grandstaff..
Prior to this report, I have previously submitted a brief to the Town of North Andover
reflecting my view that an alternative access is not necessary pursuant to state statute and
Town of North Andover regulations. Further, my brief was supported by the applicant's
attorneys from the law offices of Philips, Gerstein, Holber & Channen of 25 Kenoza
Avenue, Haverhill MA 01830. These briefs are currently in the Town's possession.
Having said that, this report will only serve to address the special requirements of the
zoning regulations Section 4.136 Watershed Protection District, Subsection 4.c.iv. "proof
that there is no reasonable alternative location outside the non -disturbance and/or non
discharged buffer zones, whichever is applicable, for any discharge, structure, or activity,
associated with the purposed proposed use to occur".
The following three properties to the northwesterly boundary of the subject parcel owned
by Johaine Realty Trust, Barbara Grasso and James u RiceAlon theare usive executive homes
northern boundary are
with outside amenities such as pools and tennis co g
two other parcels owned by Connecticut Financial,
located in standing water. ThMorley Andover
(town farm) in which the common boundaries
property to the east of the subject site is bounded by a common wetland area as well.
The following homes along the southerly boundary to the Dale Street, Appleton
intersection, all abut the subject property, however, have wetlands that prevent access to
the subject property. These parcels are owned by Harold Morley, Richard O'Toole,
Frederick White, Michael and Virginia Bubar, Christine Melvin, Edward and Jacqueline
Morgan, Jan and Stephanie Bajan, Agnes E. McCallister, Daniel and Joan Takesian,
Gregory E. and Kathleen Garbick and R. Ashton Smith. All of these properties are
bounded by wetlands and the accompanying watershed setbacks.
Along Dale Street to the northwest, which is a one-way street going east, is the R. Ashton
Smith and the Donald and Maria Hillner properties. These properties have single family
residential homes and have wetlands or wetland setback restrictions.
The sole property to the west of the subject site is owned by Joseph and Carol O'Connell.
Their home is located to the southeasterly portion of their property along the
southwesterly boundary of the subject parcel. Their home is in such a location as to
prevent reasonable access between the O'Connell and Hillner homes.
In addressing the Reasonable Alternative Access issue, I spoke with Mr. O'Connell and
determined that though the property was not on the market, he would be willing to sell the
parcel for an asking price of $250,000.00 dollars. This is even after he commented that
his home is only worth $125,000.00 to $150,000.00 dollars. He would not entertain a
roadway going in between his home and the Hillner home. In a discussion with Curt
Young of Wetlands Preservation, Inc. (WPI), he determined that there are wetlands along
the O'Connell left front boundary as well as in the central and northwesterly sections of
the property. This would prevent any access from further west.
In addition to the price of the property being extremely unreasonable, there are two other
more important issues that deal with any access from this location. The first issue is
access at a common point that becomes a safety hazard. The roadway location to Dale
Street would be at the end of a curve that has neither the site stopping distance (SSD) or
reasonable intersection site distance (ISD) for traffic having to enter Dale Street and turn
left. As I had mentioned before, all traffic entering on this portion of Dale Street must
turn left because of its one-way direction. The second issue is the more likely impact of a
roadway being wedged between and close to, the O'Connell and Hillner homes. This
would result in a likely decrease in their property values.
For these reasons, this property as well as any of the others abutting parcels are not
reasonable accesses to the subject parcel.
In closing, the subject site has two existing means of egress. Both were created when the
property was previously subdivided. Both access' ire remaining just that, access' to the
main portion of the property. Whether it be a driveway, private or public roadway, access
to the uplands to the northwest and central portion of the property can be gained from the
westerly access currently shown on plans submitted to theTown. Therefore, it is my
opinion that no reasonable alternative access can be gained to the property and should not
be considered in dealing with the briefs prepared by me or the applicant's attorney.
Respectfully submitted,
Elmer A. Pease, II CPM, EA
cc: Mike Gerstein, Esq.
Attachments
EAP/sp
aAmoa„a.aoc
DJC
Two Dundee Park. Suite 301
Andover, MA 01810-3725
Office: 508-474-1994
Fax: 508-474-1778
December 30, 1997
Mr. Elmer A. Pease
PD Associates, LLC
704 Londonderry Turnpike
Auburn, NH 03032
RE: Berrington Place
Dale Street
North Andover, MA
Dermot J. Kelly Associates. Inc.
Traffic Engineering/Transportation Planning
Dear Elmer:
As per your request, DJK Associates, Inc. has evaluated an alternative dosed driveway location
location to the
ivision. The
op
#1.33
proposed Berrington DaletSt eet residential
The alternative drive would tberapproximately 500 feet to
is opposite #125 and #133
west of the current proposed driveway location.
Adjacent to the current proposed site drive location, Dale Street is relatively tangent hich nd lcould
evel.
driAt the alternatict thevavailaboeasight distanction, Dale ereetiteis (generallylarge
undesi undesirable curve,
to locate a new
negatively affect when an
intersection on a section of roadway that exhibits a large radius curve, especially
available tangent section of roadway exists.
Should you have any additional questions, commdnts and/or if you require any additional
information please do not hesitate to call me.
Sincerely,
DJK Assoicates, Inc.
Dermot Kelly, P. E.
DJK/ah
cc: File
--ca i v» ;:;—r Pease.doc
NEIGHBORHOOD MAP
OF
DALE STREET
hoo-d 89L6'ON XH/X,L
.11P
OZ:Zi 86/60/90
PD Associates, LL C
,Real Estate Comakants
704 Londonderry Turnpike, Auhurn, Nth 03033
June 3, 1998
North Andover Planning Board
C/O M9. ]C. Wccn Bradley Colwell
30 School Stzect
North Andovtr, MA 01345
Via Facsimilc: 778-6$8-9542
Dear Mr, Chairman:
Ss
NJ
3C J:
Teleplwne #:(603)641-82#0
Fm=irnde #:(603)641-8882
Please accept this letter as a re4quest by NfPG Realty Corp to ,,withdraw our application for
the repedtive heating, without prejudice. This is in reference to application made April
222", 1998 for the Berrington Place Subdivision located cn Dale Street and described at
Map 37B, Lot #1.
It is my understanding that the fess will be waived in the went we resubmit a re-auest for
a repetitive nearing. Please call ifyeu need any additional information.
RespcctfuJly subOle
ind,
�
m�F.I +��ease Il
Owners Represemarive
EAP'sp
Cc: Kenneth Crrandstaff
Michael Cm-wein, Esq.
N
£O'd Zb96 889 909 -AOO -woo .,tanoput/ 444-40N VZI = II e6-60-unP
Z00'd 99d6'ON XH/XZ OZ:Zi 86/60/90
$-
Town of North Andover
Richard S.Rowen Chairman
O '�' TCF'. OF
COMMUNITY DEVELOPMENT AND SERVICES
Alison Lescarbeau V. Chairman
Health Sanitarian
30 School Street
John Simons, Clerk
North Andover, Massachusetts 01845
/LLLIAM J. SCOTT
Richard Nardella
Director
NOTICE OF DECISION
�-
Towns Outside Consultant
x � U
File
Planning Board
Any appeal shall be filled
` 'Z!E
within (20) days after the
• PLANNING -(9'7$) 688-9S3S
date of filling this Notice
- r978) 688-9511 • "lab NJAIN STREET
in the Office of the Town
=
Clerk,
Date June 5, 1998
Gate of Hearing May 19,
1998 e ,Tune i, 1998
Petition of MPG Realty Corp,
Premises affected Lot 1 Daae Street
Referring to the above petition for a special permit from the
requirements of the North Andover Zoning SYlaw Section 10.8
so as to allow to determine wether there are specific and material
changes in the
application for a variance to allow a repetitive petition within the 2 year prohibitior
After a public hearing giver~ on the above date, the Planning Board
voted to allow applicants to the__ Speical permit- repetitive petition
WITHDRAW W/O PREJUDICE
based upon the following conditions:
Signed'
CC: Director of Public Works
Richard S.Rowen Chairman
Building Inspector
Natural RescurceiLand Use Planner
Alison Lescarbeau V. Chairman
Health Sanitarian
Assessors
John Simons, Clerk
Police Chief
Fire Chief
Richard Nardella
Applicant
Engineer
Joseph V. Mahoney
Towns Outside Consultant
File
Planning Board
Interested Parties
CONSERVATION - (978) 688 9534) • 1iFALT11 - (9-)S) 68X-9540
• PLANNING -(9'7$) 688-9S3S
*i3UiLDlY6OFFfCE-,9"8) 688-9545 • "ZONT`JG 130ARD OF .)'PEALS
- r978) 688-9511 • "lab NJAIN STREET
80' d zV96 889 909 -Dep -utoa uanOPuV q-4-- aN VT I t I i 86-60-unr
LEONARD KOPELMAN
KOPELMAN AND PAIGE, P. C.
DAVID J. DONESKI
DONALD G. PAIGE
SANDRA M. CHARTON
ELIZABETH A. LANE
ATTORNEYS AT LAW
ILANA M. QUIRK
JOYCE FRANK
PATRICIA A. CANTOR
JOHN W. GIORGIO
31 ST. JAMES AVENUE
JOHN R. HUCKSAM, JR.
BARBARA J. SAINT ANDRE
SUSAN M. CALLAHAN
JOEL B. BARD
BOSTON, MASSACHUSETTS 02116-4102
THOMAS P. LANE, JR.
EVERETT J. MARDER
BRIAN W. RILEY
PATRICK J. COSTELLO
ROBERT PATTEN
JOSEPH L. TEHAN, JR.
(617) 556-0007
MARK R. REICH
ANNE -MARIE M. HYLAND
FAX (617) 654-1735
MARY L. GIORGIO
THERESA M. DOWDY
KATHLEEN E. CONNOLLY
PITTSFIELD OFFICE
CHRISTOPHER J. GROLL
EDWARD M. REILLY
(413) 443-6100
KIMBERLY A. HOLLIDAY
MICHELE E. RANDAZZO
DIRECTOR WESTERN OFFICE
DARREN R. KLEIN
NORTHAMPTON OFFICE
THOMAS W. MCENANEY
WILLIAM HEWIG III
(413) 585-8632
JONATHAN M. SILVERSTEIN
DEBORAH A. ELIASON
TIMOTHY J. ERVIN
JEANNE S. McKNIGHT
WORCESTER OFFICE
KATHARINE I. GOREE
JUDITH C. CUTLER
(508) 752-0203
CHRISTOPHER J. POLLART
RICHARD BOWEN
KRISTEN B. MAGENDANTZ
KATHLEEN M. O'DONNELL
ROBERT T. FORD
LAURA NELSON KLING
June 9, 1998
BY FACSIMILE - (978) 688-9556
Zoning Board of Appeals
North Andover Town Hall
120 Main Street
North Andover, MA 01845
Re:;,,, MPGRealty Corp. — Second A plication
Dear Members :of the Zoning:Board of Appeals: -
- You have requested an opinion as to how the Board should handle a second application
(received May 13, 1998) from MPG Realty Corp. seeking relief from the provisions of the
Town's Zoning Bylaw. The Board had earlier received, on March 18, 1998, an application from
MPG Realty Corp. for the same property. I have reviewed both applications and the new
application appears to seek the identical relief sought in the original application. Accordingly, it
is my opinion that the Board cannot act on the second application until the applicant complies
with the requirements of G.L. c.40A §16 for so-called "repetitive petitions".
Under Chapter 40A § 16, the Board may not act on this application unless it first votes, by
a vote of at least four members, that the Board finds that there are "specific and material changes
in the conditions upon which the previous unfavorable action was based...." The Board will
then have to describe those changes. In addition, the Planning Board will have to agree to allow
this repetitive petition, after giving notice to "parties in interest" of the time and place of the
Planning Board meeting at which this matter would be considered.
Based on the above itis my opinion that, at tonight's meeting, the Board may consider
the issue of the repetitive petition and whether or not there have been "specific and material
changes".. ;The Board may not, however, 'act on the merits of the application until the above
described process has been completed.
PRINTED ON RECYCLED PAPER
KOPELMAN AND PAIGE, P.C.
BY FACSIMILE - (978)688-9556
Zoning Board of Appeals
North Andover Town Hall
June 9, 1998
Page 2
I understand that Board member Walter Soule will not be available tonight, leaving the
Board with only four members present. The Board may proceed tonight or may, particularly if
the applicant so requests, continue this matter until the Board's next meeting when, I understand,
Mr. Soule and the rest of the Board will be present.
yours,Very truly
JBB/das
cc: Town Manager
52132/Nand/9999
N0�
TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
Notice is hereby given that the Board of Appeals will hold a public hearing at the
Stevens Memorial Library, 345 Main St., North Andover, MA on Tuesday the 9th
day of June, 1998, at 7:30 PM to all parties interested in the appeal of MPG Realty
Corporation, 11 Old Boston Rd., Tewksbury, MA 01876, requesting a Variance for
property located on Lot #1, Dale St., from the requirements of Section 4, Paragraph
136.2 (b, (iv), 136.2 (f); 136.3(d),- to build a roadway with all required and related
utilities and details within the 75' Conservation Zone within the the Watershed
Protection District, for the construction of a roadway, in Table 1 & 2.
Said premises affected are property with frontage on the North side of Dale St., Map
37B, Lot #1 Dale, (Berrington Place) which is in the R-1 Zoning District.
Plans are available for review at the Office of the Building Dept., Town Hall, 120 Main
Street, Monday through Thursday, 9:00AM - 1:OOPM.
By Order of the Board of Appeals,
William J. Sullivan, Chairman
Published in the Eagle Tribune on 5/26/98 & 6/2/98
egalnov.'9
Ftmdmmry�tOt3��O-Lcdc ...�v�, `c0roo�`romo-
_m
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Z ZZQ000tx:jQo;am pmem �N
E UpmaNm m0m
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Z�mNgY?�o,,cmc �mLom>
a�rooZ C1. 0) �>',Ldn°NLLO o A L0 nDN
W �Lzomw«(oE�OaN(UO ntM0cE,m-o
Town of North Andover
OFFICE OF
COMMUNITY DEVELOPMENT AND SERVICES
146 Main Street
North Andover, Massachusetts 01845
REQUIREMENTS AND DIRECTIONS OF THE ZONING BOARD OF APPEALS
FOR FILING APPLICATION FOR THE FOLLOWING:
VARIANCES AND 'SPECIAL PERMITS
PARTY AGGRIEVED
A
�9_ .a.:•..ti tea.
1. Every application for action by the Board shall be made on a
form approved by the Board. These forms shall be furnished by the
Administrative Secretary 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.
2. Original and ten (10) copies of the application with a
certified abutters list from the Assessors office.
(Certified abutters list must accompany application.)
3. Ten (10) copies of the site plan, and one mylar. The mylar
shall be stamped by a Registered Land Surveyor or a
Professional Engineer (with discipline). The signature
box shall have five lines for signatures. The mylar and
decision are to be recorded with the Registry of Deeds after
signed approval from the Zoning Board of Appeals. A copy of
recording will accompany any building permit application
according to M.G.L. Chapter 409, Section 14.
4. The fee for publishing the legal notice will be paid for by
the petitioner when he/she delivers the legal notice to
the newspaper. The legal notice shall be published twice,
one week apart in the local newspaper.
S. A copy of the legal notice must be sent to all abutters, by
Zoning Board of Appeals Secretary, via certified mail return
receipt requested at least 7 days prior to the public hearing.
The petitioner will be responsible and billed for postage
incurred for mailing of the legal notice and the decision. The
Zoning Board of Appeals Secretary will also mail the Notice
of Decision to the Abutters and the Petitioner.
1 of 8
F
BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535
6. Check for $25.00 for filing fee, made out to the Town of
North Andover.
7. The applications must be time -stamped by the Town Clerk before
acceptance by the Board of Appeals.
8. The petitioner or their agent or a legal representative must
attend theublic hearing.
P g
9. Any applications.i.nvolving State highways, such as Route
114, Route 125, etc., must have a copy of site plans
submitted to Mr. Sherman Eidelman (or his successor) at the
r MA Dept. of Public Works, District 4, 519 Appleton St.,
Hyl' Arlington, MA 02174 at least one week before the scheduled
meeting.
PLAN OF LAND TO ACCOMPANY PETITION
Each application and petition to the Board shall be accompanied by
the following described plan:
The size of the plan shall be 11" X 17", drawn to scale, 1 inch
C' equals 40 feet; it shall have a north point, names of streets,
zoning districts, names and address of owners of properties within
a minimum of 300 feet of the subject property, property lines and
location of buildings on surrounding properties. The location of
buildings or use of the property wheree-a variance is requested and
distances from adjacent buildings and property lines shall be
verified in the field and shown on the plan. The dimensions of the
lot and the percentage of the lot covered by the principal and
J accessory buildings and the required parking spaces shall be shown.
Entrances, exits, driveways, etc. that are pertinent to the
granting of the variance shall be shown. All proposed data shall
be shown in red.
Any topographical feature of the parcel of land relied upon for a
variance, such as ledge, rock peat, or natural condition of water,
brook or river, shall be shown on the engineering plan. When a
variance is requested to subdivide a parcel of land, the dimensions
and area of the surrounding lots may be taken from the deed or
lotting plan for comparison of the size of the lots in the
neighborhood, noted on the plan as such, and marked "approximate".
The plan shall be signed and bear the seal of a registered land
surveyor or civil engineer (with discipline). Any plans presented
with the petition shall remain a part of the records of the Board
PP
of Appeals.
If living quarters are to be remodeled, or areas are to be
converted into living quarters, in addition to the plot plan, ten
(10) copies of the following described plans shall be furnished:
2 of 8
RA.T nF nZ A�
1. A floor plan of each floor on which remodeling is to be done
or areas converted into living quarters;
2. A floor plan showing the stairways, halls, doors opening
into the halls, and exit doors of each floor or floors where
no remodeling or converting is to be done;
3. The plans and elevations shall show all existing work. All
proposed work shall be shown in red. The size of each plan
shall be 11" X 17" or 17" X 22"; it shall be drawn to scale,
1/4 inch equals one foot.
For petitions requesting variance (s) from the provisions of Section
7, Paragraphs 7.1, 7.2, 7.3 and 7.4 and Table 2 of the Zoning Bylaw
for conveyance purposes only, a site plan, certified by a
registered civil engineer or -land surveyor (with discipline), of
the parcel of land with a structure thereon being conveyed, will be
acceptable to the Board of Appeals provided:
1. The dwelling(s), structure(s), or building(s) were
constructed prior to March 14, 1977.
2. The petition is not to allow construction or alteration to
the dwelling(s), structure(s) or building(s) which will
n result in the need for the issuance of a building permit.
3. The size of the plan shall be not smaller than 11" X 17" it
shall be drawn to.scale, 1 inch equals 40 feet. The existing
area of the parcel, frontage, and existing setbacks of the
dwelling(s), structure(s) or building(s) being conveyed must
be designated.
4. Proper space is to be provided on the site plans for the
Board's signatures, as well as adequate space for the
following information: Date of filing, date of public
hearing, and date of approval.
REQUIREMENT - Legal Notification to abutters in conjunction with an
applicants request for a hearing on a variance or special permit
before the Board of Appeals is an absolute requirement. Lists of
abutters are to be certified by the Town Assessor, advertised and
cleared through the Administrative Secretary of the Board of
Appeals, in due time, before the hearing date. (See note 4 of page
4)
FAILURE TO COMPLY WITH THIS PROCEDURE WILL NOT ALLOW THE PETITIONER
TO BE PLACED ON THE ZONING BOARD OF APPEALS AGENDA.
3 of 8
Dom.. n n-) a
U NOTES:
1. Variance(s) lapse if not exercised in one (1) year
from date of decision. The variance(s)
must be recorded in the Registry of Deeds and a copy
of same -returned to the Zoning Board of Appeals and
G' the Building Inspector.
1 a. A one time extention of six months may be granted if
applied for, before the one year anniversary date
has exprired.
2. A Special Permit lapses if not exercised in two (2)
years. This Special Permit must be recorded in the
Registry of Deeds and a copy of same returned to the
Zoning Board of Appeals and the Building Inspector.
3. All plans and elevations presented with the petition
shall remain a part of the records of the Board of
Appeals.
4. The last day to petition the Board of Appeals is the
Tuesday 22 days in advance of Board meeting and before
the first publication of the Legal Notices in the local
newspaper. Regular Board of Appeals meetings are the
second Tuesday of each calendar month.
5. The administrative Secretary's business hours
are as follows:
Monday 9:00 AM to 2:00 PM
Tuesday 9:00 AM to 1:00 PM
Wednesday 9:00 AM to 2:00 PM
Thursday 9:00 AM to 2:00 PM
Friday No Business Hours
4 of 8
,)01'CE �RixUs �iA�'
TORN CLF�.�
NORTH ANUOy�R
Received by TcKo `9le jk44 P `
TOWN OF NORTH ANDOVER, MASSACHUSETTS
BOARD OF APPEALS
APPLICATION FOR RELIEF FROM THE ZONING ORDINANCE
Applicant MPG Realty Corp Address 11 Old Boston Road
Tewksbury, MA 01876 Tel. No. 978-851-9395
1. Application is hereby made:
a) For a varo the requirements of Section 4
Paragraph, — b �iv�}and Table 1&2 of the Zoning Bylaws.
136.3 d
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 _ Street.
b) Premises affected are property with frontage on the
North (X) South ( ) East ( ) 'West ( ) side of
Street.
Street, and known as No. Map 37B, Lot #1, Dale
Street.
c) Premises affected are in Zoning District R-1 and the
premises affected have an area of1,305,493 square feet
and frontage of 50, & eet .
X7`1_
5 of 8
D— nc n-) n'
a3. Ownership:
a) Name and address of owner (if joint ownership, give all
names) :
R. Ashton & Gwendolyn C. Smith;C/0 Trustee Geoffrey Smith
a 15 Driftwood Drive, North Bradford, CT 06471
Date of Purchase 3-25-1960 Previous Owner Lantern Corporation
a b) 1. If applicant is not owner, check his/her interest
in the premises:
X Prospective Purchaser Lessee Other
2. Letter of authorization for Variance/Special Permit
required.
4. Size of proposed building: N/A front; feet deep;
Height N/A stories; feet.
Da) Approximate date of erection: N/A
b) Occupancy or use of each floor: N/A
c) Type of construction: N/A
5. Has there been a previous appeal, -under zoning, on these
premises? No If so, when?
6. Description of relief sought on this petition To build a roadway with
all required & related utilities and details within the 75' Conservation Zone.
7. Deed recorded in the Registry of Deeds in Book 912 Page 187&188
Land Court Certificate No. Book Page
The principal points upon which I base my application are as
a follows: (must be stated in detail)
See attached Addendum 11A°
a
I agree to pay the fi ing fee, advertiin
sg in newspaper, and
incidental expenses*
Dgn to o titioner(s)
6 of 8
D
PI—Ir nc n� nc
DESCRIPTION OF VARIANCE REQUESTED
ZONING DISTRICT: R-1
Required Setback Existing Setback Relief
or Area or Area Requested
Conservation Zone 75' None Pursuant to Plan
Lot Dimension
Area
Varies
Street Frontage
50' & 186+/- feet
Front Setback
Side Setback (s)
N/A
Rear Setback
N/A
Special Permit Request: Not Applicable
7 of 8
Rev nF nq q�
IN
JAN 3 0 '1993
CASE #
TOWN OF NORTH ANDOVER
ZONING BOARD OF ADJUSTMENT
OWNER'S AFFIDAVIT
I, the undersigned, owner of property located at Dale Street and identified as Map 37B-
Lotfl. 1. '
do hereby authorize MPG Realty Corporation and its representatives
11 Old Boston Road Tewksbury, MA 01876
to make the following request with respect to the above-described property: Any and all requests
for the approval of Berrington Place an 8 Lot subdivision with roadways and all improvements as
shown on plans prepared by Allen &Major Associates Inc of Woburn. MA as may be required
by the Watershed Protection Bylaw and the Planning Board Please refer to Special Permit
gpplication and accompanying documentation for submittal of this request for ZBA consideration.
R. Ashton & Gwendolyn C. Smith
rustee Geoffre
Signature w Y Smith
15 Driftwood Dr. North Bradford, CT 06471
Address
Janu= 23 1998
Date
nazba.doc
rl a L4 i Z --1 140
7
a curpovtoon duly custlitbe-J U,det, tht 14ws of Commonwerl.tt Of Mar.6
I—ing It, -SU-1 place of bv%6,,ds at LtX tvq; tun
r
HiddLesex C "'tY Mistsc!'Jictu- fit c,!r-,idcr&tj:nj paid,
r(All, 10Fj. Ashton Sfftit% and :;wendcjle-r. C. Smith, husband And wffC As
"On.nn ti6 by the Ent i t•,; ty
of North AINduver, , L &Ftex Celan Ly, t tr, w611 alitfilf'o, c8Drng11!c;
Iwo certAtit I)orcels v[ land it I Wa I e d off 1),,t,: Street in
svid ticrth A11,10vitr, bounded And deitcribcd or tn11 oQ:.
?A:'. Elf NQ. I sioginiing At the Northwtnt'.r ly earner 11: laciA n.;,w
or Jon.acrly nilltiur, being OXOwlt rm Luc Ko. 17 A 011"Flun ct
Appleton &st.atcs, :ialr- Street, North ..ttdrver, Naa%;. ounicr, Lantern.
Corp.. Lahinccr, Ralph U. 15rasseur, ?Iarch 27, 10;711 Ctdd plat,
being recordod it, ttit'hLyrth Uigtrioc dl: t.sNex I(egLstry ,,. ;-ede a
K.
Plait No. 5442; thmice runnint; Northerly by a clone wall A11(t
of C&409un seven hundred forty -Lour and t-L/j(,O tcet -.i:ora or to
an iron pipe at land of Leland As slioin an &AiA pj(,ij; I:`vtice, runnitif.
utterly by D scone wall formirti, the Northerly boune.rti,v at Lot No. 2U
on said plan and by n eitcl.. form.ing thtt. Norl:14erLy boundary or Lot:x
-No. 21 and 22 on said PLani thence cu!it1nuin), by Land of said 4 -land
&a -shown on "Plan of Latul in North Andover
lover "dr". 0-1cd by I)en:tl
l!.
E. floan Jr., PtUt-unry 21), 19f6" reco de4 I*t the worth U(1;LrJc-.V of
F44ox R@[:'Istry of Deeds eia r1an iia. 3200 A total di4tonot: of 2,025
-more
Leet or less. To the :oriiur of di atone wall At: Iniiij ni, it(sticrt
Hfllet- an shown on cafe) 103V IWARd plea; thenitc: rurt,fmr end r-unnirij,
�5vkttItcrLy and by &Aid land of .-41.ler In pnr,� by a stone wall, thrnt�
-I hundredWricry-one and 46/11K: Jett to-Lhc-r 1,.nd vt ltiibc.rt Miller
As 8110wa or, esid last: hanged ratan; th(Irtcc running Wvaterly by Lite
Nurtotrly
boundary of latid cat Ilobert I.iliei , vhi'.j.0 Lijller, %illite
and 4%& allowti on said 1aat jjjjr.,.Cd j,lz,,j, [ve
"I'd 01/LOc) feet to 3 3t:unt wall &c LAW; et .*1*cI:1s,1r:i on astict plat,;
t,i,!nce vurrAni,, olid runnin.,. No."Chk-l-ly Uy tie ntz.ne null t.116 lard of
SitnUorn, one hundred VwvI%*.;y-n! . tie end icer ':;. ti -e :,at'r;ti:nVL4:rlj
E
ctirtivr if aaid Sanborn lona, --%c. oltown on sa:';j jj�ui.: %oLegice turaxim;
I
slid runni.nZ Westerly by tne 14or�lievl� I,Qutx.j1ry or land of SSnhorn and
Peters as shom or. cAld ol&t., twL, hundred c1.6titv thrc:,, rvct. ' -C. all
iron pipe at cne NormcszcrJy cornt, ut. said L.-occ
t01*rJ11Jj, ATid r-jnnln-,:-;outherly !.V the deszc:rly Linc of: attid t.irerr. :at,i
'corded'
AS; tlivvAi an plan ro N,;. 3442 referred to a,,ovc, it dictancia of
fuut- Ittlildred Llifrt " itine acid 5,/IV) f.:, t t- j,41
9,14c Last no:ucd plan; L-IC11CI: T'Uj;t'4 I J%L, at-.OUj: dert,:; i,y g slant wal. I
And 11.01.1 >trcct "a sli owit or, aoi.d 1;,n1 :.m:cd plan :n car.rsev
measuring fort/-aovcti uA tit ;(.j feet, fifty &t 1:! b *; / I •�) c C t
,
*Ix 611d 5A,/lov fcct rind fift/ fc1 tc., .1 M1011t:
UOLn<1. KS Qho�, cli said pLan; L.,cncc; uxr.•ttin7. er,0 ia a �Cnera.
*t!m
NorrhzrLy direction I.y cl;rve of a J)rC_-C0 trued Aq .: C06
ov.,. .
�dlttr. It, two cvut'sen, niutt3urinj, ar.,' 4L ).!IeK: f t a., tnt-ae
, feet z!
hanorcti thirty and Oo/Li-i fecvt to e. rictle o0und 3T. Uht.
corner of Is-ld or Antire:ozi, as attot..T, on ioiti 1(i.NL tiAri.ed plan;
Lurv'An,'and runninp i4e-tterly by tioe `orrh�rlly h:iuti� o, !,inei of
Aadrehen, Firkligm and YoRe litinered
at.,. Leet to lan,i
of etild Crentee mr%t,kcrI F.A. on ssid :)Iuti: L tience .vrnin,. and
r-jr-nin,. Ecrrherly by land of ceid grAtiree nin.-z:,f;,v, rzec lior'e
x -
Ur ICSS to thc Notnettatcr)y clr::cr of asid So 1,h Im-j; *:Icnce,
Currin:: and rutlnin!j ',(cstrrly b7 land oL fit–.'�.. Ot, SA:d ;)Ian
two :,uttdred of ht e•iglit ar.cl Lck:t it: p -111r;
and runnir. in A Southwitsitarlv directitri 137 tt curve -Inviri.! n
o: Ui*cc-t Iii'lldrUO SeVCrtV feet, It dii-LOI:C(: .,. '_wj t%tondrec
WIC, 'J2,'Ilkj Leet t� it (.rill ei,11C It, a aivt,e -Ail. a-, 1)aLe itr.c: as
a
#,• atioun oi said plan: tootles turnir.6 and mitinin; Ncrt ri-astcl-ly t.'
a stone wall sTid.Dale Street feet r_)t-v ,1' less z.atont
113—il In the Jouthr-Aoterly corner of Lot t—, 17 & as a rteic5
'Lan; tnence in a renvral. Horttio,tute-,1v djj-cr,.cjo:j Ily j:kc F'o-.;thcnqLc:--1)
boundary of Lot 17 A in t:!tr4o courae6 r''1'
' '1' "r.t'r I I . C_ LliLrry-unc- andninety-fourLest.
ninety-four c:,A 7e niincz-cd L, I,L,. And
'5/'LU ftvt J,. Oc Northeasterly C01*11e1, OL &.(0 LCL I -A aS 8r.01-1 0:1
7
`u hcicrc m< .-
Cr,nr ccs ,to :ct, x -, <;u
22. -„ Ota'
a
..
l:SLi�>:, 03, aC�orrtcc lest, .�,^C a: ,'.r. •.s: ... .�•. !c,)L'
I; l
r ,1 J
7.
LI
L_IF. +1_ER.3TE1 HIJ�i; T 1—tet; — �_—�08=1:IIS
a..•.,•. said plan; t1+cLtee turning end tvluting hurth:,eatarly Dy Lu[ 17
4 17 Connd A uta
tlaltntnglilac,tJO amort•eur aleeeq�lW Ceet to the {wiht o'. begliliaing.
acres
;ARCEL II Bcin{; shown As Lot No. 16 un tae Souc:icrly aide of hale
treat safd North Andover cn Pi
An ontitled "Plan of Land in ltorL'h
j'$ 8 Andover Maesowned by un'lief. L. ilagan Jr. 'ebrvar,
9, 1956. ;aid
plan belnI; recorded in said t-eittsrry as plan 110. 32J6,
'
sAld premises
s heln;; more oarUicularl>• boa:nded nnl. deaeribed as 1vllowaa
�.•+'.
a
(_ NU. TUL'ASTcRLY two hundred fifty fact more of, lees by CAIe SirCetl
3JUTIlIaLMMLY one liundrekt sixty ei((ht fcc.t
,
:sort of Leas by Lot
N: - 1.5 un said pLan Atoi
ek
(�
owruvEsrLI(LY two hunared twenty Lvu feet mora or Leas by lsntl how
ILEI
r,J L'
or LvmcrLy Nvnglond Powre Company ne �Irown on
.�
said 1.101).
CuntaininC :41,50V agaare feet anvrc cl- :Las uccording to said plan,
1
`
Being part of the premir•as cuttveyed Lu the ;rrr•tur Corporation
by decd of Uaniel G.. I,ogau Jr.
et tax dated April 16, 1)50, recordecl
in Laid Iccgistr„ tlo"1• J31 Pa6e 5::6,
<
Sald nretnises are conveyed subject to a takin6 by the Lsaex
County Aouania/iunere Col- I.Le 1clocativ1l of LAIC St:rtet, recorded in
eA:d kt gleety, Juok 9i3, :'aJ c 435, i.i r.0 far as _hc same af_eete LLv
u1.Cllin described prelalaea.
licanln and inl.clldin
J G g, and .lcrulry eonyey'lus to tnc grnnleee of
All the land Ste North Andover ;iv«
a[anding of record in the name of
j Lantern Corporati..n wllethcr or net the t<n+,c is Lnciuciod uithit,
the
bouedarlea ,.f else Above e:caer;Wd parecla.
Said prtlaiess are eonveye.cl .object to L1ta tsxea i<,r.• tilt current
year teltich the f;t•sutca:o herein aaa:nu o:ld ai;ree to •.al•.
I
'
Tho grantor corpol'atlon nel-rwith con4evs to :he said q;saLve: ari
and ull ruahts to riaAagr.s an y
whl::h
I referred to abcve.. Lt may 11-1(' its a )(-silt of t.ht• 7aklng
<�
U. J. fGlf'ral Ttcvormv Siarnpa �•I•�t,Cl.l••ct•[ It^r•'I I'.z�n: $tamp.
t
sum ..f S _i:.I(1'
.•I t::,l.:,•I:<: ti 4.1
,nalI it �,'.:,I .11111•1!i.
'I
fit vitt trfis IU4mat, utt sale coit!'(AtArit;N
.�
_ 6a1 uased its corporate Beal to Le lurC.o a.'F.aed anj lbes<<4cc:r u tx .
pr reslyd, xknowlcdted art.i
'
CrGvneJ in i.t nrlrc and LehaH ty Gaut'L.e H. KaLheaon, Jr.
treasurer
it• free l dare t Paid hereto dw: wthcwUe. h
r• 4,dae twetut:y-1`.f.t
✓1?
D
`'•
J
•'
day of Harsh In the year one tbo-.und n<,( hoadred and sixty ;
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CJ
.-1
I Sime,! and .Weel In rrt+eaee ofF-J
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l L417lGLt: CliKi':)f••i.-.''iuN .' •,`ja
rrkli_deAL and 11'e Aat:r r
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artlnmm�wruL•tl of l$aeourLnarRd
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Ee,tey " M,,ccll 25, 19 60
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Tf.,n perrauxliy apr'!avf du' abuuc n -%:cd Ceur'ye A. He;::c•r.ul,, ?ree ldent . Ircm0Jd
i
ni ac mowleda�ed th< ferei'olrt w.slr:useAt 1,, Le 11,c (t:e a!t and dcc.i •)f �6 i.A:. i EfN GL)RP0FiA7JUtJ
1
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ALTERNATIVE ACCESS REPORT
October 27, 1997
Location: 1 Dale Street, North Andover, MA
Purpose Access fora proposed 7 lot Subdivision -Berrington Place
1 have been asked by the applicant, MPG Realty Corp., of 11 Old Boston Road,
Tewksbury, MA 01876 to prepare a report on the feasibility of an alternative access to the
subject property proposed as a 7 lot subdivision known as Berrington Place. This request
is pursuant to a review comment made several months ago by Ms. Kathleen Colwell, the
Planning Director of the Town of North Andover to Mr. Kenneth Grandstaff..
Prior to this report, I have previously submitted a brief to the Town of North Andover
reflecting my view that an alternative access is not necessary pursuant to state statute and
Town of North Andover regulations. Further, my brief was supported by the applicant's
attorneys from the law offices of Philips, Gerstein, Holber & Channen of 25 Kenoza
Avenue, Haverhill MA 01830. These briefs are currently in the Town's possession.
Having said that, this report will only serve to address the special requirements of the
zoning regulations Section 4.136 Watershed Protection District, Subsection 4.c.iv. "proof
that there is no reasonable alternative location outside the non -disturbance and/or non
discharged buffer zones, whichever is applicable, for any discharge, structure, or activity,
associated with the purposed proposed use to occur".
The following three properties to the northwesterly boundary of the subject parcel owned
by Johaine Realty Trust, Barbara Grasso and James Rice, are exclusive executive homes
with outside amenities such as pools and tennis courts. Along the northern boundary are
two other parcels owned by Connecticut Financial, inc'. and the Town of North Andover
(town farm) in which the common boundaries are located in standing water. The Morley
property to the east of the subject site is bounded by a common wetland area as well.
The following homes along the southerly boundary to the Dale Street, Appleton
intersection, all abut the subject property, however, have wetlands that prevent access to
the subject property. These parcels are owned by Harold Morley, Richard O'Toole,
Frederick White, Michael and Virginia "ar, Christine Melvin, Edward and Jacqueline
Morgan, Jan and Stephanie Bajan, Agnes E. McCallister, Daniel and Joan Takesian,
Gregory E. and Kathleen Garbick and R. Ashton Smith. All of these properties are
bounded by wetlands and the accompanying watershed setbacks.
Along Dale Street to the northwest, which is a one-way street going east, is the R. Ashton
Smith and the Donald and Maria Hillner properties. These properties have single family
residential homes and have wetlands or wetland setback restrictions.
LJ The sole property to the west of the subject site is owned by Joseph and Carol O'Connell.
Their home is located to the southeasterly portion of their property along the
southwesterly boundary of the subject parcel. Their home is in such a location as to
prevent reasonable access between the O'Connell and Hillner homes.
EIn addressing the Reasonable Alternative Access issue, I spoke with Mr. O'Connell and
determined that though the property was not on the market, he would be willing to sell the
parcel for an asking price of $250,000.00 dollars. This is even after he commented that
Ehis home is only worth $125,000.00 to $150,000.00 dollars. He would not entertain a
roadway going in between his home and the Hillner home. In a discussion with Curt
Young of Wetlands Preservation, Inc. (WPI), he determined that there are wetlands along
E, the O'Connell left front boundary as well as in the central and northwesterly sections of
the property. This would prevent any access from further west.
In addition to the price of the property being extremely unreasonable, there are two other
more important issues that deal with any access from this location. The first issue is
access at a common point that becomes a safety hazard. The roadway location to Dale
Street would be at the end of a curve that has neither the site stopping distance (SSD) or
reasonable intersection site distance (ISD) for traffic having to enter Dale Street and turn
left. As I had mentioned before, all traffic entering on this portion of Dale Street must
turn left because of its one-way direction. The second issue is the more likely impact of a
roadway being wedged between and close to, the O'Connell and Hillner homes. This
would result in a likely decrease in their property values.
For these reasons, this property as well as any of the others abutting parcels are not
reasonable accesses to the subject parcel.
In closing, the subject site has two existing means of egress. Both were created when the
property was previously subdivided. Both access' ire remaining just that, access' to the
main portion of the property. Whether it be a driveway, private or public roadway, access
a to the uplands to the northwest and central portion of the property can be gained from the
westerly access currently shown on plans submitted to theTown. Therefore, it is my
opinion that no reasonable alternative access can be gained to the property and should not
r be considered in dealing with the briefs prepared by me or the applicant's attorney.
Respectfully submitted,
Elmer A. Pease, II CPM, EA
cc: Mike Gerstein, Esq.
Attachments
O
EAP/sp
raamoana.aoc
I:
��� Dermot J. Kelly Associates. Inc.
Traffic Engineering/Transportation Planning
Two Dundee Park. Suite 301
�+ Andover, MA 01810-3725
Office: 508-474-1994
Fax: 508-474-1778
December 30, 1997
�J Mr. Elmer A. Pease
PD Associates, LLC
r, 704 Londonderry Turnpike
Auburn, NH 03032
RE: Berrington Place
Dale Street
North Andover, MA
Dear Elmer:
r j As per your request, DJK Associates, Inc. has evaluated an alternative driveway location to the
proposed Berrington Place 7 -lot residential subdivision. The current proposed driveway location
is opposite #125 and #133 Dale Street. The alternative drive would be approximately 500 feet to
west of the current proposed driveway location.
Adjacent to the current proposed site drive location, Dale Street is relatively tangent and level.
At the alternative driveway location, Dale Street exhibits a large radius curve, which could
negatively affect the available sight distance. It is generally undesirable to locate a new
[� intersection on a section of roadway that exhibits a large radius curve, especially when an
available tangent section of roadway exists.
Should you have any additional questions, comments and/or if you require any additional
information please do not hesitate to call me.
aSincerely,
DJK /Assoicates, Inc.
Dermot Kelly, P. E.
DJ K/a h
cc: File
0' \\4770\c\DJK\JOB\355-Lt02 Elmer Pease.doc
NEIGHBORHOOD MAP
OF
DALE STREET
Y• 0 �i. Y W, r. ^g�,, � ^1...
t., d ,�� .. f �. • y` d j 'SSD:
,r;.?• : Acis
�•11��, �� ,,. lfA:� v�x3•.dt "'1+'74v �5X ..1� r.�Ri4
' v 0� e•
�y
V7� Tr,
d
�SeWOA
<f3efautb - 2 MarkersLength ='3 miles, 3000 feet Campbell Forest - 042' 38' 18.9" N. 071' 03' 2 Berrington Pface - 062" 40' 53.1 r N, 071.05'
Copyright (C) 1998. Fardr isions. trrc
flu �_,Vlrl iu..7u
aFarm 5
Commonwealth
of Massachusetts
�
taffjj tSF�
y
'a
rrcm
DEP Fare r4o. [ 242-871
tlo Ue trw•cN.7 try UEPJ
City, Town North Andover
MPG Realty Corp.
a 001,c 1n 1
Order of Conditions
Massachusetts Wetlands Protection Act
G. L. c. 131, saa
and under the Town of North Andover's Bylaw Chapter 178
NORTH ANDOVER CONSERVATION COKMISSION
MPG Realty Corp.
Q (Name of Applicant)
11 Old Boston Road
Tewksbury, MA 01876
Tnis Order is issued and delivered as follows:
c/o MPG Realty Trust
(tame of properly owner)
Address Same
cy hand deliver✓ to applicant or representative on !dale)
JCy certified mail, return receipt requested on January 8, 1998 (calc)
)project is located at Lot 1 Dale Street
T_he prccerty is recorded at the Registry of Nr, rr-hP r„ r'grn
912 page 187 & 188
�ccic
n.
nificate (if registered)
-rte rNet;ca of Intent Icr this project was filed on
July 3, 1997
(dale)
D;.was uciic hearing as c!csed on
December 17 • 1997 (date)
r ,npings
Ncr:.n Andover Conservation Commission has re./re`:/ed the abcVP rP!�fof,C_ ,''iCtrCe Cl
e _
Olrnnt arc rians dna .as he!d a cuclic
hesrino on the r re)ect. used on the information availROle tc !!re
•I SCC
at this time. the h„S Celermiiie j Il,, -,t
e area cn which the prccosed work
is to be done is sicniticant to the Ic(lo%•,rnc,r,te(osts in occcrc r,ce '/•ilh .
the Presumptions of Significannce
s.ei jjc in the reeulatrcns !or each Area Sub)ect to Prolec:rcr, Uncer the
c:a.
8 Recreation
-ct (thee! -,as acGrccnate): Ch. 178:
Prevention of Erosion & Sedimentation Ch. 178_ Wildlife
tiic
P;..,r,.. water supply
Flood control ❑ Land containing- shellfish
[ Fisheries
Private water supply
Storm damace oreventien
Ground water supply
Prevenucn of pollution Protection of wiidlile habitr:t'
1325.00
F01
$112.50
ictal t=;iing Pee Sucmitted
State Share _
ity/ ICwn Share
$212.50 lee in nr.ccss of S?51
�atal Refund Cue S
CitylTown Portion S State Portion S
(1/7 total) (1/2 total)
EDEP FELE # 242 - 871
Therefore, the North Andover Conservation Commission (hereafter the
NACC) hereby finds that the following conditions are necessary, in
accordance with the Performance Standards set forth in the State Regulations,
the local ByLaw and Regulations, to protect those interests noted above. The
NACC orders that all work shall be performed in accordance with said
O conditions and with the Notice of Intent referenced above. To the extent that the
following conditions modify or differ from the plans, specifications or other
proposals submitted with the Notice of Intent, the conditions shall control.
GENERAL CONDITIONS
1. Failure to comply with all conditions stated herein, and with all related
statutes and other regulatory measures, shall be deemed cause to revoke or
modify this Order.
2. This Order does not grant any property rights or any exclusive privileges; it
does not authorize any injury to private property or invasion of property
rights. However, the NACC, agent of the NACC or the Department of
Environmental Protection (DEP) reserves the right to enter and inspect the
property at all reasonable times, until a Certificate of Compliance is issued,
i to evaluate compliance with this Order of Conditions, the Act, the North
Andover Wetland ByLaw and Regulations, 310 CMR 10.00, and may require.
any information, measurements, photographs, observations, and/or
materials, or may require the submittal of any data or information deemed
necessary by the NACC for that evaluation. Further, work shall be
halted on
the site if the NACC, agent or DEP determines that any of the work is not in
compliance with this Order of Conditions. Work shall not resume until the
NACC is satisfied that the work will comply, and has so notified the
�j applicant in writing.
�1 3. This Order does not relieve the permittee or any other person of the necessity
of complying with all other applicable federal, state or local statutes,
ordinances, by-laws or regulations.
4. The work authorized hereunder shall be completed within three years from
the date of this order.
5. This Order may be extended by the issuing authority for one or more periods
of up to one year each upon application to the issuing authority at least thirty
days (30) prior to the expiration date of the Order (Refer to Section VIII (p.15)
of the North Andover Wetland Regulations).
n
n CAWinw0rd\00C\242-871.doc 1 NACC 1/8/98
U DEP FILE # 242 - 871
a6. The NACC reserves the right to amend this Order of Conditions after a
legally advertised public hearing if plans or circumstances are changed or if
f i new conditions or information is so warrant.
7. Where the Department of Environmental Protection (DEP) is requested to
make a determination and to issue a Superseding Order, the Conservation
Commission shall be a party to all agency proceedings and hearings before
the Department.
8. The conditions of this decision shall apply to, and be binding upon, the
applicant, owner, its employees and all successors and assigns in interest or
control. These obligations shall be expressed in covenants in all deeds to
succeeding owners of portions of the property.
9. The term "Applicant" as used in this Order of Conditions shall refer to the
owner, any successor in interest or successor in control of the property
Oreferenced in the Notice of Intent, supporting documents and this Order of
Conditions. The NACC shall be notified in writing within 30 days of all
transfers of title of any portion of property that takes place prior to the
�j issuance of a Certificate of Compliance.
r.
10. The proposed work includes: Construction of a seven (7) lot residential subdivision
including portions of the roadway, grading, utility installation and stormwater
management systems.
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DEP FILE # 242 - 871
11. The work shall conform to the following (except as noted in the remainder of
this document where revisions may be required):
Notice of Intent filed by:
Drainage Report
Prepared by:
Stormwater Operations
and Maintenance Plan
a Prepared by:
Geo -Technical Evaluation
Prepared by:
MPG Realty Corporation
11 Old Boston Road
Tewksbury, MA 01876
DATED 7/3/97
Allen & Major Associates, Inc.
Entitled "Drainage Calculations for Berrington
Place"
DATED REV 11/5/97
Wetlands Preservation, Inc.
Entitled "Operations and Maintenance Plan"
DATED REV 11/14/97
JGI Jaworski Geotech, Inc.
Entitled "Geotechnical Evaluation - Dale Street
Retaining Walls."
DATED 12/8/97
Plans prepared by: Allen & Major Associates, Inc.
Entitled "Preliminary Plan of Land - Grading &
Drainage Plan"
Sheet 3A
DATED REV 12/16/97
Entitled "Preliminary Plan of Land - Grading &
Drainage Plan"
Sheet 3B
DATED REV 12/16/97
Entitled "Profile - Glenore Circle"
Sheet 4C
DATED 11/13/97
CAWinw,0rd\000\242-871.doc 3 NACC 1/8/98
EDEP FILE # 242 - 871
Entitled "Pre -development"
Sheet D1
DATED REV 11/13/97
Entitled "Post -Development"
Sheet D2
DATED REV 11/13/97
Entitled "Rational"
Sheet D3
DATED REV 11/13/97
Entitled "Erosion Control Details"
Sheet 9
DATED 11/13/97
12. The following wetland resource areas are affected by the proposed work:
Buffer Zone to Bordering Vegetated Wetland (BVW). These resource areas
are significant to the interests of the Act and Town ByLaw as noted above.
These resource areas are also significant to the recreational and wildlife
interests of the ByLaw. The applicant has not attempted to overcome the
presumption of significance of these resource areas to the identified interests.
13. The NACC agrees with the applicant's delineation of the wetland resource
areas on the site as shown on the plans dated referenced herein. Prior to the
issuance of a Certificate of Compliance, the applicant will submit a plan
showing the site's wetland delineation ata scale identical to the Town
wetland map for this location.
14. The NACC finds that the intensive use of the upland areas and buffer zone
proposed on this site will cause further alteration of the wetland resource
areas. In order to prevent any alteration of wetland resource areas a twenty
five foot (25') No -Disturbance Zone (except at the roadway entrance in the
vicinity of wetland flags A5 through A13 and B13 through B16) and a fifty
foot (50') No -Construction Zone shall be established from the edge of the
adjacent wetland resource area. The Conservation Administrator and/or
other agents of the NACC do not have the authority to waive these setbacks
as established under the local bylaw. No disturbance of existing grade, soils
or vegetation is permitted in the No -Disturbance zone. (See Appendix 5 of
the local Regulations).
I!
15. The owners of the project and their successors in title, in the event they
proceed to alter areas subject to the Commission's jurisdiction under the
order, agree that the Order does not in itself impose upon the Town any
a
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0 DEP FILE # 242 871
responsibility to maintain the proposed drainage system and that said Town
shall not be liable for any damage in the event of failure. By acceptance of
a this Order, the owners agree to indemnify and hold harmless to the Town
and its residents for any damage attributable to alterations undertaken on
this property pursuant to the Order. Issuance of these Conditions does not in
any way imply or certify that the site or downstream areas will not be subject
to flooding, storm damage or any other form of water damage. Maintenance
of the drainage system, if accepted by the Town as part of a public wav,
becomes the responsibility of the Town.
16. There shall be no increase in the post development discharges from the storm
Y other system or ane s g
drainage othchanges in post development conditions that
alter the post development watershed boundaries as currently depicted in the
Notice of Intent and approved by this Order of Conditions, unless
specifically approved in writing by the Commission.
17. This document shall be included in all construction contracts, subcontracts,
and specifications dealing with the work proposed and shall supersede any
conflicting contract requirements. The applicant shall assure that all
contractors, subcontractors, and other personnel performing the permitting
work are fully aware of the permits terms and conditions. Thereafter, the
contractor will be held jointly liable for any violation of this Order resulting
from failure to comply with. its conditions.
PRIOR TO CONSTRUCTION
E- - WJ
18. No work shall be undertaken until all administrative appeal periods from
this Order have elapsed or, if such an appeal has been filed, until all
proceedings before the Department or Court have been completed.
19. This Order shall be recorded by the applicant at the Registry of Deeds
immediately after the expiration of all appeal periods. No work shall be
undertaken until the Final Order has been recorded in the Registry of Deeds
or the Land Court for the district in which the land is located, within the
chain of title of the affected property. In the case of recorded land, the Final
Order shall also be noted in the Registry's Grantor Index under the name of
the owner of the land upon which the proposed work is to be done. In the
case of registered land, the Final Order shall also be noted on the Land Court
Certificate of Title of the owner of the land upon which the proposed work is
to be done. The recording information shall be submitted to the North
Andover Conservation Commission on the form at the end of this Order
prior to commencement of the work. Any Order not recorded by the
C:\W inword\OOC\242-871. doc
NACC 1/8/98
DDEP FILE # 242 - 871
applicant before work commences may be recorded by the NACC at the
applicant's expense.
20. A sign shall be displayed at the site not less than two square feet or more
than three square feet in size bearing the words "Massachusetts Department
of Environmental Protection, File Number 242-871."
21. Any changes in the submitted plans caused by the applicant, another Board's
decision or resulting from this Order of Conditions must be submitted to the
I SCC for approval prior to implementation. If the NACC finds said
changes to be significant, the NACC will call for another public hearing (at
j the expense of the applicant). Within 21 days of the close of said public
hearing the NACC will issue an amended or new Order of Conditions. Any
nerrors found in the plans or information submitted by the applicant shall be
considered as changes. The proposed project may be still under review by
n other local or state boards or agencies. This may result in changes to the
project plans or wetland impacts. If any such changes occur a revised plan
l and an explanation of the revisions shall be submitted to the NACC for
review and approval prior to the start of construction. No work shall begin
on a project until written approval has been granted by the NACC.
22. It is the responsibility of the applicant, owner, and/or successor(s) to ensure
that all conditions of this Order of Conditions are complied with. The project
engineer and contractors are to be provided with a copy of this Order of
LJ Conditions and referenced documents before commencement of
l 1 construction.
23. Prior to any work on-site the applicant shall submit to the NACC for
approval a sequencing plan for construction and erosion and sedimentation
FL]control with supporting plans and details as appropriate.
24. Wetland flagging shall be checked prior to start of construction and shall be
(—, re-established where missing so that erosion control measures can be
l properly placed and wetland impacts can be monitored. The proposed limit
of work shall be shall be clearly marked with stakes or flags and shall be
confirmed by the NACC. Such markers shall be checked and replaced as
necessary and shall be maintained until all construction is complete.
Workers should be informed that no use of machinery, storage of machinery
or materials, stockpiling of soil, or construction activity is to occur beyond
this line at any time. All flags used for the above purposes shall be of a color
a.. different from other flagging used on the site.
25. A row of staked hay bales backed by trenched siltation fence shall be
placed between all construction areas and wetlands. The erosion control
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NACC 1/8/98
U DEP FILE # 242 - 871
barrier will be properly installed and placed as shown on the plans approved
and referenced herein and shall be inspected and approved by the NACC
prior to the start of construction and shall remain intact until all disturbed
C areas have been permanently stabilized to prevent erosion. All erosion
prevention and sedimentation protection measures found necessary during
construction shall be implemented at the direction of the NACC. The NACC
reserves the right to impose additional conditions on portions of this project
to mitigate any impacts which could result from site erosion, or any
noticeable degradation of surface water quality discharging from the site.
For example, installation of erosion control measures may be required in
areas not shown on the plan(s) referenced in this Order of Conditions.
Should such installation be required by the NACC, they shall be installed
within 48 hours of the Commissions request.
26. The applicant shall have on hand at the start of any soil disturbance, removal
or stockpiling, a minimum of seventy five (75) hay bales and sufficient
stakes for staking these bales (or an equivalent amount of silt fence). Said
bales shall be used only for the control of emergency erosion problems, and
shall not be used for the normal control of erosion.
27. A check payable to the Town of North Andover shall be provided in the
amount of $39,000 which shall be in all respects satisfactory to Town
'
II E Counsel P with the North
Town Treasurer, and the NACC, and shall be posted
Andover Town Treasure through the NACC before commencement of work.
CSaid ,deposit of money shall be conditioned on the completion of all
conditions hereof, shall be signed by a party or parties satisfactory to the
NACC, and Town Counsel, and shall be released after completion of the
Cproject, provided that provision, satisfactory to the NACC, has been made for
performance of any conditions which are of continuing nature. The applicant
may propose a monetary release schedule keyed to completion of specific
LJ portions of the project for the NACC's review and approval. This condition is
issued under the authority of the local ByLaw.
28. The applicant shall be responsible for placing signs on each parcel
designating the applicable lot number as depicted on the plans approved and
referenced herein.
7 29. The applicant shall designate a professional Wetland Scientist as an
L"Erosion Control Monitor" to oversee any emergency placement of controls
and regular inspection or replacement of sedimentation control devices. The
j f name and phone number of the erosion control monitor must be provided to
the NACC in the event that this person has to be contacted, due to an
emergency at the site, during any 24-hour period, including weekends. This
person shall be given the authority to stop construction for erosion control
JI
CAW i sword\000242-871.doc 7 NACC 1/8/98
aDEP FILE # 242 - 871
purposes. The erosion control monitor will be required to inspect all such
devices and oversee cleaning and the proper disposal of waste products.
a Cleaning shall include removal of any entrapped silt. At least once during
each week in which construction activities occurs on-site and for as long
thereafter as ground remains unstabilized, the applicant shall submit a
a written report from the erosion control monitor to the NACC certifying that,
to the best of his/her knowledge and belief based on a careful site inspection,
all work is being performed in compliance with this Order of Conditions.
aThe erosion control monitor must visually inspect all sedimentation/erosion
control measures and assume responsibility for their maintenance on a
weekly basis and that they are functioning as intended. In addition, all
wetland resource areas must be visually inspected for siltation, turbidity,
and/or other water quality impacts.
30. Once these above mentioned pre -construction requirements are complete,
the applicant shall contact the Conservation Office prior to site preparation
or construction and shall arrange an on-site conference with an NACC
representative, the contractor, the engineer, wetland scientist and the
applicant to ensure that all of the Conditions of this Order are understood.
This Order shall be included in all construction contracts, subcontracts, and
specifications dealing with the work proposed and shall supersede any
conflicting contract requirements. The applicant shall assure that all
contractors, subcontractors and other personnel performing the permitted
work are fully aware of the permit's terms and conditions. Thereafter, the
contractor will be held jointly liable for any violation of this Order of
Conditions resulting from failure to comply with, -its conditions. The
applicant or contractor shall notify the NACC in writing of the identity of the
on-site construction supervisor hired to coordinate construction and to ensure
compliance with this Order. A reasonable period of time shall be provided
as notice of the pre -construction meeting (e.g. 72 hours).
SUBDIVISION LOT DEVELOPMENT
31. The NACC shall be notified in writing of any lot line or number changes
with a copy of a plan showing these changes prior to any work on these lots.
CAWinword\00C\242-871.doc 8 NACC 1/8/98
UDEP FILE # 242 - 871
DURING CONSTRUCTION
32. Immediately upon completion of each dwelling foundation, and prior to
further construction activities associated with the site, the applicant shall
complete a plan prepared by a Registered Professional Land Surveyor
(R.P.L.S.) which accurately depicts the foundation location and its proximity
to wetland resource areas as approved under this Order of Conditions. Said
plan shall be submitted to the Conservation Administrator for approval.
33. Upon beginning work, the applicant shall submit written progress reports
every month detailing what work has been done in or near resource areas,
and what work is anticipated to be done over the next period. This will
update the construction sequence.
34. Approved de -watering activities anticipated at the roadway entrance location
shall be supervised and witnessed by the designated erosion control monitor.
This designee must be on-site while work specific to the roadway retaining
wall installation is occurring and until this section is complete. Dewatering
activities shall be conducted as shown on the approved plans and shall be
monitored daily by the erosion control monitor to ensure that sediment laden
water is appropriately settled prior to discharge toward the wetland resource
areas. No discharge of water is allowed directly into an area subject to
jurisdiction of the Wetlands Protection Act and/or the North Andover
Wetland ByLaw. If emergency de -watering requirements arise, the applicant
shall submit a contingency plan to the Commission for approval which
provides for the pumped water to be contained in a settling basin, to reduce
turbidity prior to discharge into a resource area.
35. All catch basins shall contain oil/ gasoline traps, and it shall be a continuing
condition of this order, even after a Certificate of Compliance is issued, that
the oil/gasoline traps in the catch basins be maintained. All catch basins
shall be free of all accumulated silt and debris before a Compliance is issued
and the owner or his/her agent shall so specify in the request for
Compliance.
36. The sewer lines on the site shall be tested for water tightness in accordance
with North Andover DPW standards.
L
37. Any fill used in connection with this project shall be clean fill, containing no
trash, refuse rubbish or debris, including but not limited to lumber, bricks,
1 plaster, wire ,lath , paper, cardboard, pipe, tires, ashes, refrigerators, motor
vehicles or parts on any of the foregoing.
n CAWinw0rd\000\242-871.d0e 9 NACC 1/8/98
0 DEP FILE # 242 - 871
0
38. No exposed area shall remain unfinished for more than thirty (30) days,
n unless approved by the NACC.
39. No regrading in the buffer zone shall have a slope steeper than 2:1
0 (horizontal: vertical). Slopes of steeper grade shall be rip -rapped to provide
permanent stabilization.
40. There shall be no stockpiling of soil or other materials within twenty-five (25)
feet of any resource area.
0 41. Washings from concrete trucks, or surplus concrete, shall not be directed to,
any drainage system, or wetland resource area.
42. All waste generated by, or associated with, the construction activity shall be
contained within the construction area, and away from any wetland resource
0 area. There shall be no burying of spent construction materials or disposal of
waste on the site by any other means. The applicant shall maintain
dumpsters (or other suitable means) at the site for the storage and removal of
0 such spent construction materials off-site. However, no trash dumpsters
will be allowed within 50' of areas subject to protection under the Act or
local ByLaw.
43. Accepted engineering and construction standards and procedures shall be
0 followed In the completion of the project.
44. During and after work on this project, there shall be no discharge or spillage
0 of fuel, or other pollutants into any wetland resource area. If there is a spill
or discharge of any pollutant during any phase of construction the NACC
shall be notified by the applicant within one (1) business day. No
0 construction vehicles are to be stored within 100 feet of wetland resource
areas, and no vehicle refueling, equipment lubrication, or maintenance is to
n be done within 100 feet of a resource area.
AFTER CONSTRUCTION
0 45. No underground storage of fuel oils shall be allowed on any lot within one -
hundred (100) feet of any wetland resource area. This condition shall survive
this Order of Conditions, and shall run with the title of the property. This
0 condition is issued under the authority of the Town's Wetland protection
ByLaw.
CAWinword\00C\242-871.doc 10 NACC 1/8/98
EDEP FILE # 242 - 871
46. Fertilizers utilized for landscaping and lawn care shall be slow release, low -
nitrogen types (< 5%), and shall not be used within 25 feet of a resource area.
a Pesticides and herbicides shall not be used within 100 feet of a wetland
resource area. This condition is issued under the authority of the Town's
Wetland Protection ByLaw and shall remain in perpetuity.
a47. No road salt, sodium chloride, or other de-icing chemicals shall be used on
paved surfaces, and any arrangement for snow removal shall so stipulate due
oto the importance of the site and wetlands. Permanent signs designating
"No -Salt Zone" and "No -Snow Stockpiling Zones' shall be displayed in
prominent locations to be approved by the Conservation Administrator
aand a representative from the Department of Public Works.
48. After completion of work, the applicant shall permanently mark the edge of
wetland resource areas and the No -Disturbance Zone with signs or
markers designating their sensitivity. This will ensure no further
a inadvertent encroachment into the wetland. These permanent markers are
subject to review and approval by the NACC. The applicant shall instruct
all agents to explain these markers to buyers/lessees/landscapers and all
apersons taking over the property from the applicant.
49. Upon completion of construction and grading, all disturbed areas located
a outside resource areas shall be stabilized permanently against erosion. This
shall be done either by loaming and seeding according to SCS standards. If
a the latter course is chosen, stabilization will be considered complete once
vegetative cover has been achieved.
0 50. Upon completion of the project, the applicant shall submit the following to
the Conservation Commission as part of a request for a Certificate of
a Compliance:
a. A letter from the applicant requesting a Certificate of Compliance.
b. The name and address of the current landowner.
a c. Signed statements from the individual property owners shall be
submitted with the request for a Certificate of Compliance indicating
that they have read and understood the Order of Conditions prior to
a purchasing their property.
d. The name and address of the individual/ trust or corporation to whom
the compliance is to be granted.
e. The street address and assessor's map/parcel number for the project.
f. The DEP file number.
g. A written statement from a Registered Professional Civil Engineer of
the Commonwealth certifying that the work has been conducted as
shown on the plan(s) and documents referenced above, and as
r? conditioned by the Commission.
CAWinword\00C\242-871.doc 11 NACC 1/8/98
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P�I DEP FILE # 242 - 871
A
C
h. n "As -Built" plan prepared and signed and stamped by a Registered Professional Civil Engineer of the Commonwealth, for the public
g
r , record. This plan will include:
➢ "As -Built" post -development elevations of all drainage &
n
stormwater management structures constructed within 100 feet
of any wetland resource area.
III lJ
lam' ➢ "As -Built" post -development elevations and grades of all filled
�I or altered wetland resource areas including the encompassing
buffer zone which is regulated as a wetland under the local
wetland bylaw.
(�' C ➢ Distances from structures to wetland resource areas. Structures include (but are not limited to) septic systems, additions, fences,
sheds, stone walls, pools, retaining walls, and approved decks.
➢ A line showing the limit of work and the extent of existing
erosion control devices. "Work" includes anv disturbance of
soils or vegetation.
➢ Location of all subsurface utilities entering the property.
52. The following special conditions shall survive the issuance of a Certificate
of Compliance (COC) for this project:
➢ 25' No -Disturbance Zone and a 50' No -Construction Zone shall
be established from the edge of adjacent wetland resource areas
except in those locations approved under DEP # 242-871.
Future work within 100' of existing wetland resource areas will
require a separate filing with the NACC (refer to Section XI
(page 18) of the Regulations for performance standards within
these zones) The Conservation Administrator and/or other
agents of the NACC do not have the authority to waive these
setbacks as established under the local ByLaw;
➢ Maintenance of catch basins (Condition #35);
C➢ Discharge or spillage of pollutants (Condition # 44);
j ➢ Prohibition of underground fuels (Condition #45);
➢ Limitations on the use of fertilizers, herbicides, road salts, de-
icing compounds and pesticides (Conditions #46 & 47).
CAWinword\OOC\242-871.doc 12 NACC 1/8/98
EDEP FILE # 242 - 871
➢ The attached "Stormwater Operations and Management Plan"
P g
including Best Management Practices. No additional filings
will be required to conduct maintenance of the above
referenced system and plan.
EJ
CAWinw0rd\00C\242-871.doc 13 NACC 1/8/98
2,.)p. :124Z -
Issued Sy NORTH AN
Sign,atura;sj
_.44� G
0
242-871
n Conservation Commissicn
�IThis Crder must be signed by a majority of the Conservation Commission.
Cn this 7th day of January 1998 before me
Joseph W. Lynch, Jr.
personally appeared , to me known to be the
person described in and who executed the foregoing instrument and acknowledged that he, she executec
the same as hisiher free act and deed.
Notary Puttic My commission expires
�1 )Tha apoficant. the owner. any person aggrieved by this Order, any owner of land abutting the land upon which the pr000seo work is to be
iQonc o. any ten residents of the city or town in which such land is located are hereby notified of their right to request the Department of
l—+ �nvxCnmental Quality Engineering to issue a Superseding Order, providing the request is made by certified mail or hand delivery to tile
Oecartmeni. with the aporopnate filing fee and Fee Transmittal Form as provided in 310 C -MR 10.03(7), within len Cays from the (3310 01
issuance of this Order. A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation
Commission and the applicant.
rt If you wish. to appeal this decision under the Town Bylaw,
a complaint must be filed in Superior Court in accordance with M.G.L.
Chapter 249 S.4
RECORDING 1Nr10R.X—kT=ON:
Oetacn on dotted line and submit to the North Andover Conservation Cpmm. prior to commencement of work.
C.............................................................................................................................................................................................. i...................
Nor.h Andover Conservation Commission, 120 lain St., North Andover Iss 01 4u
To
Please be advised that the Order of Conditions for the project at
..File Number 242-8.71 has been recorded at the Registry of Deeds, Northern Esse-x
ahas been noted in the chain of title of the affected property in accordance with General Condition 8 on
It recorded land, the instrument number which identifies this Iransac:ion is
II registered land• the document number which identities this Iransaction is
Signature
511A
and
19
AonhCanl
Berrington Place Definitive Subdivision
Conditional Approval
The Planning Board herein APPROVES the Definitive Subdivision for a seven (7) lot subdivision
known as Berrington Estates Place. MPG Realty Corporation, 11 Old Boston Road, Tewksbury, Iv[A
01876, submitted this application on January 16, 1998. The area affected is located off of Dale Street
in the R-1 Zoning District.
The Planning Board makes the following fundings as required by the Rules and Regulations Governing
the Subdivision of Land:
A. The Definitive Pian, dated January 16, 1998, last revised on 313198, includes all of the information
L: indicated in Section 3 of the Rules and Regulations concerning the procedure for the submission of
L plans.
B. The Definitive Plan adheres to all of the design standards as indicated in Section 7 of the Rules and
Regulations except as noted in Condition 17 Waivers.
C. The Definitive Plan is in conformance with the purpose and intent of the Subdivision Control Law.
D. The Definitive Plan complies with all of the review comments submitted by various town
O departments in order to comply with state law, town by-laws and insure the public health, safety,
and welfare of the town.
Finally, the Planning Board finds that the Definitive Subdivision complies with Town Bylaw
requirements so long as the following conditions are complied with:
I ) Environmental Monitor: The applicant shall designate an independent environmental monitor
who shall be chosen in consultant with the Planning Department. The Environmental Monitor
must be available upon four- (4) hour's notice to inspect the site with the Planning Board
designated official. The Environmental Monitor shall make weekly inspections of the project and
file monthly reports to the Planning Board throughout the duration of the project. The monthly
reports shall detail area of non-compliance, if any and actions taken to resolve these issues.
2) Prior to endorsement of the plans by the Planning Board the applicant shall adhere to the
following:
a) A Development Schedule must be submitted for signature by the Planning Board, which
conforms to both Sections 4.2, and Section 8.7 of the North Andover Zoning Bylaw. The
schedule must show building permit eiigibility by quarter for all lots.
b) A Site Opening Bond in the amount of five thousand ($5,000) dollars to be held by the Town
of North Andover. The Site Opening Bond shall be in the form of a check made out to the
L�
LTown of North Andover that will be placed into an interest bearing escrow account. This
amount shall cover any contingencies that might affect the public welfare such as site -opening,
clearing, erosion control and perfonnance of any other condition contained herein, prior to the
posting of the Roadway Bond as described in Condition 4(d). This Site Opening Bond may at
the discretion of the Planning Board be rolled over to cover other bonding considerations, be
E
released in full, or partially retained in accordance with the recommendation of the Planning
Staff as directed by a vote of the NRPB.
c) The final subdivision plans must be reviewed and approved by the outside consultant, the
l 1 Planning Department and D.P.W.
d) A covenant (FORM I) securing all lots within the subdivision for the construction of ways and
municipal services must be submitted to the Planning Board. Said lots may be released from the
covenant upon posting of security as requested in Condition 4(d).
e) The applicant must submit to the Town Planner a FORM M for all utilities and easements
placed on the subdivision.
f) All application fees must be paid in full and y.-eri6ed by the Town Planner.
g) The applicant must meet with the Town Planner in order to ensure that the plans conform to
the Board's decision. A full set of final plans reflecting the changes outlined above, must be
submitted to the Town Planner for review endorsement by the Planning Board, within ninety
(90) days of filing the decision with the Town Clerk.
h) The Subdivision Decision for this project .must appear on the mylars.
i) All documents shall be prepared at the expense of the applicant, as required by the Planning
Board Rules and Regulations Governing the Subdivision of Land.
3) Prior to ANY WORK on the site,
a) Once the subdivision plans have been recorded, the applicant must apply for and receive
a variance for work within the 75' Conservation Zone under the North Andover
Watershed Protection District Zoning Bylaw. No work will be allowed on the site until
the variance has been issued. If the request for a variance is denied, this subdivision will
be in violation of the North Andover Zoning Bylaw and the approval will be deemed
rescinded.
b) Yellow "Caution" tape must be placed along the limit of clearing and grading as shown on the
Capproved plan. The Planning Staff must be contacted prior to any cutting and or clearing on
site.
c) All erosion control measures as shown on the plan and outlined in the erosion control plan
must be in place and reviewed by the Town Planner.
4) Prior to any lots being released from the statutory covenants:
a) Three (3) complete copies of the endorsed and recorded subdivision plans and one (1) certified
copy of the following documents: recorded subdivision approval, recorded Covenant (FORM
1), recorded Growth Management Development Schedule, and recorded FORIM M must be
submitted to the Town Planner as proof of recording.
b) All site erosion control measures required to protect off site properties from the effects of work
on the lot proposed to be released must be in place. The Town Planning Staff shall detern>ine
whether the applicant has satisfied the requirements of this provision prior to each lot release
and shall report to the Planning Board prior to a vote to release said lot.
c) The applicant must submit a lot release FORM J to the Planning Board for signature.
d) A Performance Security in an amount to be detemvned by the Planning Board, upon the
recommendation of the Department of Public Works, shall be posted to ensure completion of
the work in accordance with the Plans approved as part of this conditional approval. The bond
must be in the form of a check made out to the Town of North Andover. This check will then
be placed in an interest bearing escrow account held by the Town. Items covered by the Bond
may include, but shall not be limited to:
i)
E
as -built drawings
ni)
sewers and utilities
iii)
roadway construction and maintenance
CI iv)
lot and site erosion control
v)
site screening and street trees
vi)
drainage facilities
vii) site restoration
E viU)final site cleanup
A Perfortnance Security may be established for each phase individually.
5) Prior to a FORM U verification for an individual lot, the following information is required by the
Planning Department:
a) A "One Way" sign must be placed on Dale Street visible from the new subdivision roadway in
a location approved by the DPW.
b) The Planning Board will review the status of the Subdivision and vote to verih, FORM t
0 3
applications as appropriate and in conformance with this decision.
c) An as -built plan must be submitted to the Division of Public Works for review and approval
prior to acceptance of the sewer appurtenances for use.
d) If a sidewalk is to be constructed in front of the lot, then such sidewalk must be graded and
staked at a minimum.
e) The applicant must submit a certified copy of the recorded FORM J referred to in Condition
4(c) above.
0 A plot plan for the lot in question must be submitted, which includes all of the Mowing:
i) location of the structure,
ii) location of the driveways,
iii) location of the septic systems if applicable,
iv) location of all water and sewer lines,
v) location of wetlands and any site improvements required under a NACC order of
condition,
vi) any grading called for on the lot,
vii) all required zoning setbacks,
viii) Location of any drainage, utility and other easements.
g) All appropriate erosion control measures for the lot shall be in place. The Planning Board or
Staff shall make final determination of appropriate measures.
h) Lot numbers, visible from the roadways must be posted on all lots.
6) Prior to a Certificate of occupancy being requested for an individual lot, the following shall be
required:
a) Sprinkler systems must be installed in all homes per N_AFD requirements.
b) The roadway must be constructed to at least binder coat of pavement to properly access the lot
in question. Prior to construction ofthe binder coat, the applicant shall ensure that all required
inspection and testing of water, sewer, and drainage facilities has been completed. The
applicant must submit to the Town Planner an interim as -built, certified by a professional
engineer, verifying that all utilities have been installed in accordance with the plans and profile
sheet.
c) All necessary permits and approvals for the lot in question shall be obtained from the North
Andover Board of Health, and Conservation Commission.
4
on - a '74.cti o00 one -nan _JannnUW u -i_ nwi acn-rn oc-F:;'--ACiW
d) Pennanent house numbers must be posted on dwellings and be visible from the road.
n e) There shall be no driveways placed where stone bound monuments and/or catch basuis are to
Lbe set. It shall be the developer's responsibility to assure the proper placement of the driveways
regardless of whether individual lots are sold. The Planning Board requires any driveway to be
r moved at the owner's expense if such driveway is at a catch basin or stone bound position.
7) Prior to the final release of security retained for the site by the Town, the following shall be
completed by the applicant:
a) An as -built plan and profile of the site shall be submitted to the DPW and Planning Department
for review and approval.
b) The applicant shall petition Town Meeting for public acceptance of the street. Prior to
submitting a warrant for such petition the applicant shall review the subdivision and all
remaining work with the Town Planner and Department of Public Works. The Planning Board
shall hold a portion of the subdivision bond for continued maintenance and operations until
such time as Town Meeting has accepted (or rejected in favor of private ownership) the
roadways. It shall be the developer's responsibility to insure that all proper easements have been
recorded at the Registry of Deeds.
E8)
The Applicant shall ensure that all Planning, Conservation Commission, Board of Health and
Division of Public Works requirements are satisfied and that. construction was in strict compliance
with all approved plans and conditions.
9) The Town Planner will review any signs utilized for this project. The applicant must obtain a sign
permit as required by Section 6 of the Bylaw. The Planning Board shall approve any entrance
structures. The applicant must remove any lighting used for the entrance signs prior to acceptance
of the subdivision.
10) The applicant shall adhere to the following requirements of the Fire Department:
a) Open burning is allowed by permit only after consultation with the Fire Department.
b) Underground fuel storage will be allowed in conformance with the Town Bylaws and State
Statute and only with the review and approval of the Fire Department and Conservation
Commission.
11) There shall be no burying or dumping of construction material on site.
12) The location of any stump dumps on site must be pre -approved by the Planning Board_
13) The contractor shall contact Dig Safe at least 72 hours prior to commencing any excavation.
Ir - J 774.CG OOr] C2 -/\C. NRrZ •111' _ I] Ar'Y''11.1 Iin Ir .l J(l rte- rIN OG - G% - .J dw
14) Gas. Telephone, Cable, and Electric utilities shall be installed as specified by the respective utility
companies.
15) Any action by a Town Board, Commission, or Department which requires changes in the roadway
alignment, placement of any easements or utilities, drainage facilities, grading or no cut lines, may
ybe subject to modification by the Planning Board.
16) The following waivers from the Rules and Regulations Governing the Subdivision ofLand, North
rAndover. Massachusetts, revised February, 1989 have been granted by the Planning .Board:
a) Section 7(A)(4) Dead -End Streets: The Planning Board herein grants a waiver of
approximately 100' for the street length. The applicant has demonstrated that the street length
j will have no adverse impact on the Watershed Protection District.
b) Section 7(D)(2) Sidewalks: The sidewalks will abut the curb per requirement of DPW.
n c) Section 7(E)(1) Street Trees: The street trees will be placed outside of the ROW per
�I requirement of DPW.
d) These waivers have been granted in an effort to minimize the amount of cutting and filling
required on site thereby decreasing the amount of erosion and siltation on site.
(� e) The utilities must be installed and the streets or ways constructed to binder coat by
�i 01f 22, Zcncod (two years from the date permit granted). If the utilities are not
installed. the streets or ways are not constructed to binder coat and the Planning Board has not
granted an extension by the above referenced date, this definitive subdivision approval will be
deemed to have lapsed.
17) This Definitive Subdivision Plan approval is based upon the following information which is
incorporated into this decision by reference:
a) Plans entitled: "Definitive Plan of Land — Berington Place", ten sheets dated January
16, 1998 last revised 3/3/98. Prepared by Allen & Major, Woburn MA
b) Reports entitled:
i) "Statement of Environmental and Community Impact", dated January 15,
1998.
ii) "Water Quality and Best Management Practices (BMP) Evaluation".
Berrington Place, Dale Street, North Andover, Massachusetts, dated July 14,
c_
cr r.- mss. t -c own c�rirt- -nam •���rs-� .�anr�niiH 1#-1 jnw1 _jin-rn oti-r--7--t d
1997, revised October 8, 1997.
Conservation Administrator
Director of Public Works
Health Administrator
Building Inspector
Police Chief
Fire Chief
Assessor
Applicant
Engineer
File
Berrington Estates - subdivision
7
cn•a '7.1+.c9-1 o00 one •ratan .aannnLJW a� i..�nsi aon- rn oe---r--7--AdW
Notice to APPLICAYT/T�_rH CLialK and CerLiSication of Arno., of Plaruu-Mg Board
ou L1a1initira Suhdivisioa PIan o,ntitlod: Berrington Place
gp; Allen & Major Associates, Inc. dated. :;anuar-y 16, , 1q 98
The North Arxkrver Planning Board has voted to AFPRDVE said pLa.:, sub;ect to the
following ccrdiitic=i
I. That "'no record owners of the :object ;arm forthwith ezc_ate and record
a "coverar:t ru: g with the land", or otherwiso provide sec,)-itc ,a, the corp
strncticr. of wig and the I.nstaLation of municipal services ri t's.i.n said su6-
di7i3ion, all as prvvi(!eS trj G.L. c. 41, S. 81-U.
Z. 'That all such corIstructicn and instal;ations shall _n all respects
ccnfcrTd tc the gcvcra:� rules az�d ea_i:,'t`ions of tbls Board.
3. That, az required by the -North Andover Board of Roal.a i.n its report to
this Board, no buiaiirg or other structure shah be built or placsd upon Lots
No. as shown, os said Plate without the prior
ccnse t of said Board of Health.
Other cooditian.s:
In the event that no appeal sha.1 have beta taker free said approval within
twent7 drys from h1his date, the )forth aadover Plana as BoArd VVLl forthwith
Cher -after endorse its formal approval _ipon amid plLn.
r r a • s e • • • * M • w a ar • • • * s w • w ♦ t a ♦ 1� • r • • a a • •
r th `�.adover ?L�ualn�3as.-d
Ian, Tor
r �
Richard S_ Rowen
—i..— .--- --- -..ter. . i—
Pv
�7pn�
�t
m r,-
rnzy
is
In the event that no appeal sha.1 have beta taker free said approval within
twent7 drys from h1his date, the )forth aadover Plana as BoArd VVLl forthwith
Cher -after endorse its formal approval _ipon amid plLn.
r r a • s e • • • * M • w a ar • • • * s w • w ♦ t a ♦ 1� • r • • a a • •
r th `�.adover ?L�ualn�3as.-d
Ian, Tor
r �
Richard S_ Rowen
—i..— .--- --- -..ter. . i—
A. MESITI DEV. CORP. Fax: i--S�-851-9366 Apr 30 '98 10:40 P.01/08
Towle of North Andover 1999
ONCE OF ,
COMMUNITY DEVELOPMENT AND SERVICES }(
30 School Street
North Andover, Massachusetts 0IN5
wII.I.IAM !. SCO'^T
Director
NOTICE OF DECISION
Any appeal shall be filled
within (20) days after the
date of filling this Notice
in the Office of the Town
Clerk.
t1O
Date April 2a, .t998
Date of Hearing 3/ 17/9a, 4/-7/98 & 4/21/98
Petition of KPG: Realtx corporation _
Premises affected
Referring to the above petition for a special permit from the
requirements of the North Andovpr 7rning Bylaw gai.,tson 4 T 3F; LhL L,)_ 1111
Watershed Protection District
so as to allow to. build a roadway, watexline and detention basin„ within th,e
non discharge, non disturbance and conservation buffer zones.
After a public hearing givers on the above date, the Planning Board
voted to APPROVE
the Watershed special Permit
based upon the following conditions:
SignedL:9.0
CC: Director of Public Works
Richard S.Rowen, Chairman
Building Inspector
Natural Resource/Land Use Planner
Alison !_escarbeau, V. Chairman
Health Sanitarian
Assessors
John Simons, Clerk
—
Police Chief
CApplicant
Fire Chief
Richard Nardella
Engineer
Joseph V. Mahoney
Towns Outside Consultant
File
Planning Board
interested Parties
CONSERVATION - (998) 588 9536 • 111,1LT11• (973) 68i1*954u
• 11 -INNING, 0781 "8"-9,35
*RUILDINGOFFICE . (978) 699,95,45 - *ZONINC HOARD nr APPEALS - (918) 68x.9541 • *146 MAIN STREET
F�,
H.MESITI DEV. CORP. Fax: 1-508-851-9Y-6 Hpr 30 "?8 10:41
Town of North Andover
OMCE OF
COMMUNITY DE'VELOPMEN'T A.ND SERVICES
VILLIAM ,'. SCOTT
Director
Apnl23, 1998
Ms. Joyce Bradshaw
Town. Clerk
120 Main Street
North Andover, MA 01845
30 School Street
North Andover, Massachusetts 013+5
Re- Watershed Special Permit -Lot l Vale Street
Dear Ms. Bradshaw,
P. 02/08
t•CR7►,
a � c
The North Andover Planning Board held a public hearing on Tuesday evening March 17, 1998 at
T-30 p.m. in the Department of Public Works, upon the application of Lot I Dale Street, North
Andover, Ma 01845 to request a special perrrut under Section 1.436 (3) (b) (c) (d) of the
Watershed Protection District of the North Andover Zoning Bylaw. The legal notice was
properly advertised in the North Andover Citizen on January 28 &.February 4, 1998 and all
parties of interest were duly notified. The follolAing members were present: Richard Rowen,
Chairman, Alison Lesearbeau, Vice Chairman, John Simons, Cleric, Joseph V. Mahoney and
Richard Nardella.
The petitioner was requesting a special permit to allcw to construct a roadway, waterline and
detention basins within the non discharge, non disturbance and conservation buffer zones.
The premises affected is Lot I ,Dale Street in the Residential - 1 (R-1) Zoning District and the
Watershed Protection_ District.
Elmer Pease and Eric rieyiand of Allen &: Major Associates were present to represent Lot I Dale
Street. Mr. Pease highlighted the boundaries on the plan Mr. Pease stated that they moved the
detention basin outside of the 75' conservation zone. Ms. Colwell stated that there is deadline for
the subdivision for the April 1998 meeting. Mr. Rowen stated that we can't approve the
subdivision with out the special permit. Ms. Colwell stated that we still have not received DPW's
comments. Mr. Rowen asked Ms. Colwell if they had any outstanding issues that she imows of.
Ms. Colwell stated that there were not any for the subdivision.
Kerry NIcCoIlister of ^06 Dale Street, had concerns with the detention basin and culverts
discharging onto his property from the Bear HiII subdivison_ An abutter of 128 Dale Street had
concerns with the excavation and the removal of the culverts.
Lam'
�I !OARD Or APPEALS 688.9341 BUILDING 688-9343 CONSERVATION 688-9530 HEALTH 688-9540 PL kiNNING 688.9535
r,
A. MESITI DEV. COPE. Fax:1-508-851-9366 Apr 30 '98 10:41 P.03/08
Mr. Nardella asked how big the culverts are now. Mi. Pease stated that they are 12", Dave Rand
showed the Board pictures, Mr. Nardella asked what DPW's continents are. Ms. Colwell went
over DPW's concerns. Mr. Nardella asked if DPW has responded to any concerns of the
abutters. Mr, jVfcCoilister stated that he has spoken to Bill Hmurciak, and he is unaware of the
lateral culverts, Nfi'. McColIister stated that he doesn't understand how the can put the waterline
under the culverts,'Mr. McCollister also stated that they were told the runoff from Bear HiII
would not be a problem, it seems to him that part of the Boards job is to protect the existing
homeowners. Mr. Rowen stated that we don't have to make the applicants solve the existing
problems. Dan Takesian of 198 Dale Street, stated that if you put up homes then the water will
have no place to go. We already have Bear Hill's water runoff Mr. Takesian stated that their
backyards are filled with water up to their knees and with any serious rain they won't have a
backyard. Mr. Pease stated that we have already ?one through all this with ConCom and have
M
done several tests. r. Pease stated that Mr. Chessia has reviewed the Stcrm Water Management
and we have addressed every concern they had. Mr. Pease stated that any other concerns with
Planning, there isn't anything we can do. The Beaver Pond is downstream,
Sandra Timmons of 205 Dale Street, stated that when Bear all was put in there was supposed to
be a dry retention area put in and now the baffle pipe is gone, Dave Rand of 280 Dale Street,
stated that he has looked for the plans for the dry retention area's for Bear Full but, can't find
there. This would have been built for, I00 year storm and if the pipe was there it would hold up
the water but, I believe a homeowner removed it. Mr. Rowen asked if a homeowner definitely
removed the pipe. Mr, Rand stated that he can't say that for sure. Mr. Rowen stated that the
applicants are required to ensure they don't create problems but they are not responsible for
curing the Bear Hill problem, l"fr. Simons stated that the assumptions may not be correct because
your not taking ail the potential areas to a count. Mr. Pease stated that we have answered all
these same questions, Mr. Pease stated that they have to make sure that the water drains on their
property correctly. Mr, Nardella asked Ms. Colwell if Mr. Cb.essia has any more comments on
this parcel. Ms. Colwell stated that there were no more comments for Storm Water Management
and these same issues were discussed at the ConCorn meetings.
Dave Rand of 280 Dale Street, stated that in one weeks time the beavers put back all the dams.
Mr. Rand stated that he renewed his permit to take down 100 yards of the dam. Mr. Rand stated
`-' that if the situation is not resolved we will be under water. Mr. Rowen stated that he understands
and if the review is correct this development is not going to have any impact on the situation. Mr
Takesian stated that we don't have a problem with the beavers like Mr. Rand we have a problem
with thew ater coming onto astated to our property, Mr. Rowen stated that we are doing the best we can.
r Mr. Takesianhat they will have a big problem with the impacts of the subdivision. llr.
Rowen stated that he won't let this subdivision go forward if they are going to cause harm to the
abutters, Mr. Rowen stated that the applicants will not make the problem worse. Mr. Pease
stated that even the Town's Engineer stated that tate problem will not get worse. Mr. Rand asked
why no oae from DPW or John Chessia has tonne out to see this problem with Bear Hill. Mr.
' Rowen suggested that they address their problems to Mr. Chessia. Ms. Colwell stated that they
R.I-IESITI BEV. CORP. Fax:1-508-851-9366 Rpr Z;0 '98 10:42 P.04/08
should address their concems to the Planning Department and they we 'Mll forward there to Mr,
Chessia.
Continued until April i, 1998
The North Andover Plant -dna Board held a regular meeting on April 7, 1998 the following
members were present, Richard Rowen, Chairma;-i, Alison Lescarbean, Vice Chairman, Tohr.
Simons, Clerk, Joseph Mahoney, Richard Nardella & Alberto Angles, Associate Member.
Kathleen. Bradley Colwell, Town Planner was also present.
Ives. Colwell stated that thea are no remaining issues with this filing. tics. Colwell stated that we
can't issue a decision until ZBA grants chem a variance,
Or a motion by Mr, Nardella, seconde8 by -M. s. Lescarbeau, the Board voted unanimously to
close the Public hearing and direct staff to draft a decision.
The North Andover 'lanru z;g Board held a regular meeting on April 'L4, 199.4. x he following
members were present: Richard Rowen, Ci;airman, Alison Lescarbeau; Vice Chairman, roseph
Mahoney & Adberto Angles, Associate Member. Kathleen Bradley Colwell, Town Planner was -
also present.
On a motion by %, ,Lr, Angles, seconded by bfr. Nilahoney, the Board voted unanimously to approve.
the draft decision as amended for Lot 1 Dale Street,
Attached are the conditions
Sincereiv, _
Richard S. Rowen, Chairman
North Andover'Planning Board
A. MESITI DEV. CORP. Fax:1-508-551-9366 Apr 30 '98 10:43 P. 05/03
F"
Berrington place
aSpecial Permit - Watershed Protection District
The Planning Board makes the Following findings regarding the application of N. VG Realty
Corporation. 11 Old Boston Road, Tewksbury, MA 01476, dated February 20.1998, regttestirig u
Special Permit under Section 4.136 of the Zoning By -Law of the North Andover Zon' $v(aw to
allow activities which cause a change iii topography and grade, vegetation removal, and suzface and
subsurface discharge of storm water mroff within the Non Disturbance Zone and surface and sub-
surface discharge of storm -water within the Non -DL --charge Zone of the Watershed Protection Distrct.
'✓'ENDINGS OF FACT:
Irl accordance with 4.136(4) the Plaxix;ing Board snakes the finding that the intent of the Bylaw, as well
as its specitic criteria, are met. Specifically the Planning Board fids:
!. That as a result of the proposed construction in conjunction with other uses nearby, there will
not be any significant degradation of the quality or quantity of water in or entering Lake
Cochichewick. The planning Board Erases its findings on the following facts:
al All of the homes wi]1 be connected to the Town sewer system;
b) storm water mitigation will catch and treat all storm water drainage;
C) the limit of clearing is restricted to the minirnum necessary to construct the driveway;
dl a construction phasing plan and emergency response plan are required.
e)
All of the proposed dwellings are located entirely outside of the non -disturbance zone.
2. - that there is no reasonable alternative location outside the Non -Discharge Buffer Zone for any
r>sv
discharge, structure or activity, associated with the proposed driveway ceetioc, as the lot
is located within the Non -Discharge Zone.
In accordance Mth Section ':0.31 of the North Andover Zoning Bylaw. the ,Piaiuung Board :Hakes the
following findings:
A. The specific site is an appropriate location for the proposed use as ah feasible stormwater and
erosion controls :have been placed on the site,
B. The use will not adversely affect the neighborhood as the lot is located in a resideutial zone;
C. There will be no nuisance or serious uazard to vehicles or pedestrians;
A.MESITI DEV.CORP. Fax:1-508-851-9366 Apr 30 '98 10:43 P.06/08
D. Adequate and appropriate facilities are provided for the proper operation of the proposed use;
E. Tl.e Planning Board also makes a specific finding that the use is in hannony %xrth, the general
purpose and intent of she North Andover Zoning Bylarv.
Upon reaching the above findings, the Planr ing Board approves this Special Permit based upon the
Following conditions:
SPECIAL CONDITIONS:
This decision must be died with the North Essex Registry of Deeds. The �o illowxng iufort-nation
is included as part of this decision:
a) Plans entitled: "Definitive Plan of land - Berington Place", tete sheets dated January
16, 1998 last revised 3!3/98. Prepared by Allen. & Major, Woburn. MA
b;) .Reports entitled:
i) "Statement of Envirenmentai and Community Impact", dated January 15,
998.
iii "Water Quali v .and Best Mrtaagement Practices (BMP) Evaluation",
Berrington Place, Dale Street, North Andover, Massachusetts, dated July 14_
1997, revised October 8, 1991.
C) The Town Planner shall approve any changes made to these plans. Any changes
deemed substantiae by the Town Planner would require a public ?xearmi g and
rnodification by the Planning Board
?. Prior to any work on site:
aj Thr, limit of clearing line on each lot trust be marked in the field with, yellow caution
tape and :Host be reviewed and approved by the Town. Ptax=,
b) A per£onT=ce guarantee of ten thousand ($10,000) dollars in the form of a check
made out to the Town of North Andover must be posted to insure that construction
will take plate in accordance with the pians and the condi.ions of this decision and to
ensure that the as -built plans will be submirted.
C) All erosion con -a -al measures as shown on theplan must be in place and reviewed by
the Town Planner.
&) The site sball have received all necessary permts and approvals from the North
2
F,
A. i 1ESI T I DEV. CMP
Fax:1-508-8 1-c3366 Apr 30 '98 10:44 P. 07/08
Andover Conservation Cornmission, Board of Health, and the Defartmerat of Public
Works and be in complianoc with the above pernnits and approvaia,
I Prior to Verification of the FORM U (Building Permit fssuance):
a) Prior to the verification of the FORM U for Lot ?
H. MESITI DEV. CDR -P. Fax: 1-1-'4J8-851-9.366 Hpr 60 ' ats 10.41 P. 08/08
9. The Contractor shall contact Dig Satin at least 72 hours prior to Commencing excavation.
10, The provisions of this conditional approval shall apply to and be binding upon the appacaut, it's
e=ioyees and U successors and assigns in interest or control.
11. This permit shall be deemed to have lapsed aria a two -(.2) year period from the date
Cid 1x:on which the Special Perinit was granted unless substantial use or construction
has commenced.
CIC Director of Public works
Building InspeLtar
Health Agent
Assescor
Consexvntion AdLnininrator
Police Officer
Fire Chief
Applicant
Engineer
rile
Berington Estates - Watershed
4
r-
w
cr
LEONARD KOPELMAN KoPELMAN AND PAIGE, P. C.
DONALD G. PAIGE
ELIZABETH A. LANE
ATTORNEYS AT LAW
JOYCE FRANK
JOHN W. GIORGIO
31 ST. JAMES AVENUE
BARBARA J. SAINT ANDRE
JOEL B. BARD
BOSTON, MASSACHUSETTS 02116.4102
EVERETT J. MARDER
PATRICK J. COSTELLO
JOSEPH L. TEHAN. JR
BOSTON OFFICE
ANNE -MARIE M. HYLAND
(6171 666.0007
THERESA M. DOWDY
FAX (617) 664.1726
WILLIAM HEWIG III
NORTHAMPTON OFrICE
DEBORAH A. ELIAtION
14131 666.6632
JEANNE S. MCKNIUHr
JUDITH C. CUTLER
WORCESTER OFFICE
RICHARD BOWEN
1606) 762.0203
November 21, 1997
KATHLEEN M. O•DONNELL
DAVID J. DONESKI
SANDRA CHARTON
ILANA M QUIRK
JOHN RICHARD HUCKSAM. JR.
SUSAN M. CALLAHAN
BRIAN W. RILEY
JOHN J. KENNEY. JR.
ROBERT PATTEN
MARY L. GIORGIO
KATHLEEN E. COMNOLLV
MICHELE E. RAN0AZ20
PETER J. FEUERBACH
MARY JO HARRIS
THOMAS W. MCENANEY
JONATHAN M. SILVERSTEIN
TIMOTHY J. ERVIN
KATHARINE 1. GOREE
CHRISTOPHER J. POLLART
BY FACSiMILE - (978) 588-9542
FPivis. Kathleen Bradley Colwell P 1 if i
'I o"m Planner NOV 2 41987 • w�
North Andover Town Hall
120 Main Street
: A.NNING q,)nRn
North Andover, MA 01845
Re: Berrington Estates Subdivision - Interpretation of Watershed
Protection District Bylaw and related Questions
Dear Ms. Colwell:
You have requested an opinion regarding several issues raised by the applicant's attorney
in regard to the proposed Berrington Estates subdivision.
It is my understanding that, in particular, you seek clarification as to: 1) whether the
Watershed Protection District Bylaw (the "Bylaw") affects this proposed subdivision; 2) whether
the applicant, if required to obtain a variance, should obtain that variance from the Planning Board
or from the Zoning Board of Appeals; and 3) what role the Conservation Commission will play
with respect to this.proposed subdivision prucess.
Briefly, in response to these questions, it is my opinion that: 1) the Watershed Protection
District Bylaw will affect any lot(s) the applicant records after October 24, 1994, the effective .
date of the Bylaw; 2) if the applicant is required to obtain a variance fiont any part ul• the Zoning
Bylaw, including the Watershed Protection District Bylaw, the Zoning Board of Appeals will be
the proper authority to issue such a variance; and 3) the Conservation Commission will be
responsible for enforcing the Town's general (i.e., non-zoning)\k-etlands Bylaw and the State
Wetlands Protection Act, but not the Watershed Protection District Bylaw which will be enforced
by the Planning Board.
PRINTED ON RECYCLED PAPER
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LE KOPELMAN AND PAIGE, P.C.
Ms. Kathleen Bradley Colwell
Town Planner
November 21, 1997
Page 2
Application of the October. 1994 Watershed Protection District Bylaw
The facts as I understand them are as follows. The applicant seeks to subdivide a parcel
of property which lie has owned since prior to the effective date of the Watershed Protection
District Bylaw. However, before lie actually obtains subdivision approval for this property, he is
proposing to build a road into the center of it; lie intends to later use this road as the access into
the subdivision. This proposed road wil! undisputedly cress a non -disturbance buffer zone as
defined in the Watershed Protection District Bylaw. He hopes that by building the road prior to
completing the subdivision process, he will avoid the Watershed Protection District Bylaw
requirements because the road will have been built un a lot which was in existence before October
24, 1994.
In my opinion, the applicant's property will not be subject to the restrictions of the
Watershed Protection District By-law until the applicant records or registers the property as
consisting of rtrw hits. Thut is, in my opinion the Bylaw requirements only apply to those lots
recorded or registered after October 24, 1994. Since the applicant's lot was in existence before
that date, it is my opinion that it is not subject to the Bylaw. Furthermore. in my opinion, merely
proposing to subdivide the lot does not trigger the restrictions under the Bylaw. In my opinion,
the language of the Bylaw clearly states that it is applicable only to those lots recorded and
rekistered after October 24, 1997. Therefore;, in my opinion, until the applicant records o
re2isters new lots Of the subdivision, the Bylaw does not apply. As a result, whether the Bylaw
will apply or not in this particular case depends largely on how the applicant chooses to proceed.
it is possible that the applicant could complete the subdivision process, including construction of
the road, without recording any of the lots, i.e., by covenanting to secure the construction of tate
subdivision ruad, thereby avoiding the necessity of recording the lots until after construction is
complete. Oil the other hand, it is possible he will record the lots prior to the completion of
construction, (after posting a bond or dt:c to another circumstance), thereby triggering the Bylaw
requirements, in my opinion. hi summary, it is my opinion that once the new lots arc recorded,
the Bylaw will become applicable, but work performed un (lie existing, "unsubdivided" lot will not
be subject to the Bylaw.
Variance Procedures
With respect to the second question, it is my opinion that if the applicant should require a
variance liunl the provisions ofthe Watershed Protection District Bylaw, he must obtain such a
variance from the Zoning Board of Appeals. In a letter dated July 23, 1997, the applicant's
attorney seems to indicate lie believes the Planning Board would be the proper authority from
which to obtain a variance. In my opinion, this position is mistaken. While it is true that pursuant
to the Watershed Protection District Bylaw, the Planning Board is cinpowtred to hear and act on
special peniiil requests, nothing alters the exclusive authority given to the 7.oning Board of
Appeals to hear and decide variance requests.
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KOPELMAN AND PAIGE, P.C.
Ms. Kathleen Bradley Colwell
Town Planner
November 21, 1997
Page 3
Conservation Commission Role
The third question appears to ask what role and authority the Conservation Commission
has with respect to processing this subdivision request. In my opinion, the Conservation
Commission will conduct a review which is separate from that of the Planning Board and Zoning
Board of Appeals. The Conservation Commission will review the applicant's plan to ensure
compliance with the Town's Wetlands Bylaw and State Wetlands Protection Act. The Planning
Board (and Zoning Board of Appeals, if necessary) will review the pian with respect to the
Watershed Protection District Bylaw and all other applicable zoning and subdivision provisions,
rules and regulations.
Should you have further questions regarding this matter, please do not hesitate to contact
me.
Very truly yours,
Joel B. Bard
JBBIKAHJatg
cc: Town Manager
Board of Selectmen
36918inan&9999
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Herbert P. Phillips, PC LAW OFFICES OF
Michael A. Gerstein // (� p�(� fp��
Stuart M. Holber (Plumps, Cer il.[/ Z, Ho�Ger & Clown
Russell S. Channen
Jane M. Owens Triano
Ronald N. Beauregard 25 Kenoza Avenue 0 Haverhill, MA 01830
Kevin P Rauseo TeL (978) 374-1131 /(800) 457.6912 ■ Fax: (978) 372.3086
OI Counsel:
John T. Pollano
Gerald M. Lewis
October 20, 1997
William J. Scott
Director of Community Development and Se! -.,ices
146 Main Street
North Andover, MA 01345
Re: Berrington Estates Subdivision
Dale and Appleton Streets
North Andover, Massachusetts
Dear Mr. Scott:
I had previously written to you on July 23, 1997 stating the position of my client, MPG Realty
Corp., and its desire to proceed with the above referenced subdivision.
I am enclosing a further copy of such correspondence and am requesting again that Town Counsel
issue an opinion, consistent with the position I have taken, that no further access points to the
above property would be necessary.
I would be more than happy to contact Town Counsel directly, although I am requesting that you
proceed as quickly as possible to obtain such opinion so that my client can proceed in its
endeavors.
Vecy-truly yours,
Michael A. Gerstein -�
MAG/If
:J
cc: MPG Realty Corp.
Elmer Pease
Kathleen Bradley Colwell
All attorneys admitted in Massachusetts.
Holber, Beauregard and Rauseo admitted also in New Hampshire.
Holber admitted also in Maine.
Other office: 32 Saco Avenue, Po. Box w, Old Orchard, ME 04064 Reply to Haverhill office only
Herbert P. Phillips. PC. (� /��rp►�(�/1LAAW�OFICCES OF
p► n0I /%�/( ►�►�p
Michael M.
olbeGersrein T/4st N efsk / of / I ofU & l../ �l U n
Stuart M. Holber
Russell S. Channel
Jane M. Owens Triano 25 Kenoza Avenue ■ Haverhill, MA 01830 ■ Tel. (508) 374.1131 ■ Fax (508) 372.3086
Ronald N. Beauregard
Kevin P Rauseo
Of Counsel:
John T. Pollano
Ju y 23, 1997
William J. Scott
Director of Community Development and Services
Town of North Andover
146 Main Street
North Andover, MA 01845
Re: "Smith Property"
Dale and Appleton Streets
r� North Andover, Massachusetts
rr Dear Mr. Scott:
Please be informed this office represents MPG Realty Corp. relative to its desire to subdivide the
P Y rP
above property. I have received a copy of the letter of Kathleen Bradley Colwell, Town Planner,
dated April 24, 1997 relative to her position that my client would need another access point to the
`J property and, if not, would require a variance from the Zoning Board of Appeals. I have had
occasion to review my client's file, the Town of North Andover Zoning Bylaws, the Wetlands
Protection Bylaw, and the Wetlands Regulations for the Town of North Andover. I have also
examined the title to the property, and I am of the belief that town counsel will concur that a
n' variance will not be required. I am listing herewith my reasons and would request you submit this
letter to Town counsel for his/her review and comments. It is my client's further hope and desire
. to proceed with the subdivision in an expeditious manner, and I believe town counsel should be
(� involved to address these concerns currently.
Pursuant to the provisions of the Zoning By -Laws, and, in particular, Section 4.136 dealing with
"Watershed Protection District", it is stated.under 4:1'36.2.f, "the provisions relating to the _
`" establishment of the Conservation Zone and the enlargement of the non -disturbance zone and the
non -disturbance zones shall only apply to lots recorded and registered after the date of the
enactment of this amendment." (October 24, 1994). Please be aware that the Smith Property in
question was purchased March 25, 1960 as recorded at Book 912, Page 187 of the Essex North
District Registry of Deeds, a copy of which deed I am enclosing herewith.
It is certainly acknowledged that the North Andover Conservation Commission is empowered by
�I the Wetlands Protection Bylaw to preserve and protect the wetland resource areas, and to adopt
All attorneys admitted in Massachusetts.
Holber and 8eauregard admitted also in New Hampshire.
MI ,
L,
Orders of Conditions which are necessary to regulate its responsibility. The Conservation
Commission does have the authority to waive strict compliance with its regulations, when in its
duld be consistent with the intent and purposes of the Bylaw. I certainly
judgment, such action w
acknowledge that my client, as an applicant, has the burden of proving that the grant of a waiver
is consistent with the intent and purposes of the Bylaw. I wish to further acknowledge that the
proposed subdivision and its current access points are in the non -disturbance buffer zone,
although the following uses shall be allowed within such zone only by Special Permit, issued
pursuant to Section 4 of the Watershed Protection District Bylaw.
I . Any activities which cause a change in topography or grade;
2. Vegetation removal or cutting, other than in connection with agriculture uses or
maintenance of a landscape area.
5. Any surface or subsurface discharge, including but not limited to storm water runoff,
drainage of any roadway that is maintained by the Division of Public Works or any private
association; outlets of all drainage swales; outlets of all detention ponds.
You should be aware that the current roadway that is used and would be proposed to be used to
access the property has a width of between thirty (30) and forty (40) feet. Correspondingly, the
shoulders of the roadway are thirty eight (38) to fifty (50) feet. The slopes therein are currently
eroding and partially treated, and the degradation of the adjoining or abutting wetlands are
affected during heavy rains by the sediment from the soil in the slopes. Based upon such
situation, the improvement to the roadway would greatly reduce the erosion and would serve to
better direct and treat any storm water runoff. The addition of a paved roadway, which is further
proposed as part of such subdivision, with a closed drainage system directed to a treatment swale,
would further reduce TSS counts to DEP acceptable levels.
From a further review of all documentation, I believe it is fairly clear that the Conservation
Commission is allowed to permit the construction and maintenance of a new roadway or
driveway, of minimum, legal and practicable width, acceptable to the Planning Board dimensional
standards "where no alternate means of access from ari existing public or private way to an upland
+ area of the same ownership is available." As has been previously mentioned herein, the property
has been held in the same owner since 1950, and thus was in existence prior to the effective date
of October 24, 1994. When reviewing such matters in its entirety, and reviewing the burden of
proof requirements, whereby an applicant must prove by a preponderance of the evidence that the
work proposed in the application shall nop, ave an,unacceptable significant and/or
cumulative affect upon the wetland values protected by this Bylaw, I would contend that a
variance would not be required. Furthermore, since '& access road in existence would be
acceptable as a single lot, it should not lose its applicability and availability for subdivision
purposes.
It is important to note in reviewing the Zoning Bylaws that "the Special Permit Granting
Authority (SPGR) under this Bylaw shall be the Planning Board." Such Bylaw was clearly
intended to allow the Planning Board and not -the Zoning Board of Appeals to make a
i determination with regards to proposed subdivisions, and I would suggest that Town Counsel
L review that in detail.
r
"A
my review of the
hat a
division was formerly
by
I think it useful intog ineMar h,1957 for the site, tw with he plan brecord d at the Essex North District
thethe Planng Boar
Registry in Deeds, on April 2, 1957, listed as Plan # 3442. The access points remain the same as
proposed in the current plan, which clearly evidences the intent to use such access points as a
means of entering the property for subdivision purposes. While I must clearly acknowledge that
the Planning Board is not required to accept a new subdivision based upon one that e, xi a
number of years ago. I think it is important in making a determination of the use of the site that
the clear intent and purposes of such subdivision was to use the existing access points. The owner
who originally intended to proceed with the subdivision was Lantern Corporation which, I
understand, involves the Smith Family who are the current owners of the property, with the
previous subdivision formerly known as "Appleton Estates"
It is my sole intent and desire to expedite the subdivision process and allow for uses that are
clearly spelled out and allowed under the rules and regulations of the Town of North Andover.
MPG Realty Corp. is desirous of completing the plans for submittal of its Notice of Intent, and, as
well, prepare a definitive set of plans for submittal to the Planning Board, and I would appreciate
vour having town counsel formulate an opinion, in light of the within submittal.
Very truly yours,
ichael A. Gerstein
MAG/if
cc: MPG Realty Corp.
Elmer Pease
DALE STREET - COMPLIANCE BRIEF & FINDING
I have carefully reviewed the Town of North Andover's Zoning Bylaws -Reprinted --
1996 and their Wetlands Protection Bylaw and Wetlands Regulations. 1 researched those
sections of the Bylaws that pertain to the Buffer Zone distances and requirements and
their interaction with our proposed development.
I reviewed several key sections that have, or could have some bearing on the
roadway that is proposed for the 7 lot residential subdivision. The following excerpts
were taken from the Bylaws and are the ones that are at the heart of this brief.
I have also included a copy of the deed to the property furnished by the attorney
who completed the title abstract. This deed shows that the property was a lot of record as
of March 25, 1960. This date, is of course, critical in the determination of whether or not
certain provisions of the Regulations and Bylaws affect this property.
After careful review of the Bylaws and Regulations, excerpted below and
highlighted, it is my opinion that the roadway we propose in its current location does not
require the submittal or finding of the Zoning Board of Appeals. Further, it is my
opinion, that the Conservation Commission has the authority and right to grant a waiver
to allow the roadway pursuant to Section I.E. Waivers From Regulations -Wetlands
Regulations, and the Planning Board to grant a Special Permit pursuant to the finding that
the property is a lot created prior to October 24, 1994 and pursuant to Section 4.136.3.c.i
and 4.136.c.ii of the Zoning Bylaws -Watershed Protection District, Town of North
Andover Zoning Bylaw -Reprinted 1996.
Pursuant to Section 4.136.1.d of the Watershed Protection District, the Special
Permit Granting Authority (SPGA) shall be the Planning Board. The Conservation
Commission has the jurisdiction and authority pursuant to Section 178.2 and 178.6 of the
Wetlands Bylaw and Section I.E of the Wetlands Regulations.
This finding supports the fact that the Planning Board and Conservation
ir, Commission have the right and the authority to review and. grant approval on this
subdivision without having to- acquire a variance from the Zoning Board of Appeals.
WETLANDS PROTECTION BYLAW
Section 178.1 Purpose. The purpose of this Bylaw is to preserve and protect
the wetland resource areas (as specified in Section 2) and buffer zones of the Town of
North Andover by regulations of, and control of, activities (more particularly described in
Section 2 below) deemed by the Conservation Commission (the "Commission") to have
significant or cumulatively detrimental effect upon the following interests and values,
including but not limited to: public or private water supply; groundwater; the prevention
t and control of flooding, erosion, sedimentation, storm damage, and/or pollution;
protection of fisheries, wildlife, wildlife habitat, and recreation.,
F
d
L7
lav
Section 178 .9 Rules and Regulations. The Commission shall be empowered to
adopt Rules and Regulations to govern its affairs, including, but not limited to, fees,
ultants, and such other information which it deems necessary to
definitions, use of cons
discharge its responsibility. After due notice and public hearing, the Commission may
promulgate such rules and regulations to effectuate the purposes of this Bylaw, by a
majority of the duly appointed members.
l _ WETLANDS REGULATIONS
Section I.B Purpose.The purpose of the North Andover Wetlands Protection Bylaw
(hereafter referred to as the "Bylaw") is clearly stated in the Bylaw. These Regulations
are promulgated to ensure fairness, to create a uniformity of process and to clarify and
define the provisions to the Bylaw, administered by the North Andover Conservation
Commission, hereafter call the "Commission".
Wetlands contribute to a number of public interests and are therefore protected by the
Bylaw. The Bylaw identifies three additional public interests not recognized by the Act.
These are: "prevention of erosion and sedimentation", "wildlife" and "recreation". Any
permit issued under the Bylaw and Regulations must therefore contribute to these public
interests.
Section LE Waivers from Regulations. Strict compliance with these Regulations
may be waived when, in the judgment of the Commission, such action is consistent with
the intent and purpose of the Bylaws and these Regulations. the applicant shall have the
t burden ofP roof that the granting of the waiver is consistent with the intent and purpose of
,.
the Bylaws and these Regulations. The Commission shall act on the request and shall
provide to the applicant, either by certified mail or hand delivery, its written decision.
See Appendix 2 for a Waiver Request Form.
Section II Definitions.
2. The term "alter" shall include without limitation, the following actions when
undertaken in areas subject to the Bylaw:
a) changing of pre-existing drainage-characteristi,cs, sedimentation patterns, flow
patterns or flood retention characteristics; -0
b) placement of fill, excavation or regrading;
C) destruction of plant life, including cutting and removing of trees or shrubs;
d) changing water temperature, biochemical oxygen demand or other physical or
chemical characteristics of water;
n e) any activities, changes or work which pollute or cause displacement of any body
L� of water or groundwater;
f) any activities, changes or work which cause alteration of wildlife habitat.
3 The term "burden of proof" means the applicant shall have the burden of proving
by a preponderance of credible evidence that the work proposer/ in the application shall
not have an unacceptable significant antUor cumulative effect upon the wetland values
protected by this Bylaw. Failure to provide adequate evidence that the work proposed in
the application shall not have an unacceptable significant and/or cumulative effect upon
the wetland values protected by this Bylaw shall be sufficient cause for the Commission
to deny a permit or grant a permit with conditions.
Section VI Performance Standards and Supplement Documentation
A. Flood Standards.
B. Wildlife Habitat
C. Stormwater Management
D. Erosion Control
E. Wetland Replacement or Restoration
E.3. The Commission may permit the construction and maintenance of a new roadway or
driveway of minimum legal and practical width acceptable to Planning Board
Dimensional standards, where no alternative means of access from an existing public or
private way to an upland area of the same owner is available. Replication of altered
wetlands resources may be required by the Commission to minimize adverse impacts and
to protect the interests identified in the Bylaw.
WATERSHED PROTECTION DISTRICT
Section 4.136 2.f The provisions relating to the establishment of the Conservation
Zone and the enlargement of the Non -Disturbance Zones shall only apply to lots of
recorded or registered after the date of the enactment of this amendment (October 24,
1994). (1994/1 STM).
Table 1 - Lots created after October 24, 1994
Conservation
From Annual High
Water Mark of
Lake Cochichewick
out to
From Edge of All
Wetland Resource
Areas Within the
Watershed District
out to
150'
75'
Non -
Disturbance
250'
150'
Non -
Discharge
400'
X11
Table 2 -,Lots created on or prior to October 24, 1994
Non -
From Annual High
Wates- Mark of
Lake Cochichewick
out to
From Edge of All
Wetland Resource
Areas Within the
Watershed District
out to
C. Non -Disturbance Buffer Zone
Disturbance
250'
[11141
Non -
Discharge
325'
325'
There shall exist a Non -Disturbance Buffer Zone within the Watershed Protection District
which shall consist of all land areas located between one hundred fifty .............
i. Allowed Uses: All of the Allowed Uses listed in Section 3(a)i of this Watershed
Protection District Bylaw are allowed in the Non -Disturbance Zone except as noted
below.
ii. Uses Allowed by Special Permit: The following uses shall be allowed within the
Non -Disturbance Buffer Zone only by Special Permit issued pursuant to Section 4 of this
Watershed Protection District Bylaw.
(1) Any activities which cause a change In topography or grade.
(2) Vegetation removal or cutting, other than in connection with agriculture
uses or maintenance of a landscape area.
(5) Any surface or sub -surface discharge, including but not limited to,
stormwater runoff; drainage of any roadway that is maintained by the Division of Public
Works or any private association; outlets of all drainage swales; outlets of all detention
ponds.
The current roadway that is used to access the property has a width of between 30-
40 feet. The shoulders of the roadway are 38-50+ feet. The slopes are currently eroding
and partially treated. The degradation of the adjoining or abutting wetlands are affected
during heavy rains by the sediment from the soil on the slopes.
The improvement to the roadway would greatly reduce the erosion, and better
channel and treat stormwater runoff. The addition of a paved roadway, with a closed
drainage system directed to a treatment swale would reduce TSS counts to DEP
acceptable levels.
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