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Home My WebLink AboutMiscellaneous - Exception (175)� `� 6 TOWN OF NORTH ANDOVER OFFICE OF COMMUNITY DEVELOPMENT AND SERVICES 27 CHARLES STREET NORTH ANDOVER, MASSACHUSETTS 01845 Attorney Thomas Urbelis 155 Federal Street Boston, MA 02110 — 1727 Dear Mr. Urbelis, Telephone (978) 688-9545 FAX (978) 688-9542 March 12, 2001 Upon review of lot 32 Great Pond Woodland, Bridle Path, North Andover it appears as though Attorney Stephen Nelson of Shea & Dangora is correct in his assumption that the lot in question is indeed protected. I am including the letter he sent me along with the 1977 deed, which you had mentioned that I ask for from him. I will be forwarding a copy of this to him. I received a call from him this afternoon and told him that he may be correct but that I needed your final take on it. Thanks for your patience. Respectfully, Michael McGuire Local Building Inspector Town of North Andover Office of the Building Department Community Development and Services Division William J. Scott, Division Director 27 Charles Street North Andover, Massachusetts 01845 D. Robert Nicetta Building Commissioner Memorandum TO: Heidi Griffin, Town Planner FROM: Michael McGuire, Local Building Inspector DATE: April 17, 2001 RE: Lot 32 Great Pond Woodland, Bridle Path Cc: D. Robert Nicetta, Building Commissioner Telephone (978) 688-9545 Fax (978) 688-9542 Upon review of the above noted proposal and associated submitted paperwork and discussions with Town counsel the following observations have been determined. 1) The lot in question was created by definitive plan in October of 1976 2) It was then recorded in January of 1997 thus offering it protection for 8 years from any zoning changes 3) It was conveyed to separate ownership in March of 1977 In conclusion the lot is not subject to the watershed district regulations as the zoning amendment was after the lot was created. BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 SHEA & DANGORA ATTORNEYS AT LAW 566 BOSTON ROAD P.O. BOX 599 BILLERICA, MASSACHUSETTS 01821 PHILIP R. SHEA JAMES T. DANGORA, SR. STEPHEN A. NELSON JAMES T. DANGORA, JR. February 5, 2001 Mr. Michael Maguire Asst. Inspector of Buiidings Town of North Andover 120 Main Street North Andover, MA 01845 Re: Lot 32 Great Pond Woodland, Bridle Path, North Andover, Massachusetts Dear Mr. Maguire (978)667-2757 (978)667-2758 FAX (978) 670-5763 We have been asked to render an opinion regarding the applicability of the North Andover Watershed Protection District By -Law to the lot in caption. According to our information, the lot in question was created by a definitive plan approved by the North Andover Planning Board on October 19, 1976. Said plan was duly recorded with the Essex North District Registry of Deeds as Plan No. 7548 on January 24, 1977. Pursuant to the provisions of M.G.L. Chapter 40A, Section 6, Paragraph 5, all lots shown on said plan are protected from changes in the Zoning Ordinance or By -Laws for a period of eight (8) years, even if they are held in common ownership. Once the lots within the subdivision are conveyed to third parties, the provisions of Chapter 40A, Section 6, Paragraph 4 become applicable to protect the lots from changes in the Zoning Ordinance or By -Law provided the lot contains a minimum of 5,000 square feet of area and 50 feet of frontage. In the present case, our research indicates that while this lot was protected by the eight (8) year plan freeze, it was conveyed out and was held in separate ownership from Lots 31 and 33 which abut it. (See deed dated March 3, 1977, recorded in Book 1303, Page 627.) In or about 1978, North Andover adopted amendments to its Zoning By -Laws, which included provisions for a "Watershed District" (Section trft(1A E created, inter alia, the following: 1!i FEB - 62001 BUILDING DEPT. Mr. Michael Maguire February 2, 2001 Page 2 (3)(c) No cut buffer zone -150 feet horizontally from annual mean high water mark of Lake Cochichewick. (3)(d) No construction zone - 250 feet horizontally from said annual mean high water mark, and 100 feet horizontally from the edge of all tributaries, except by Special Permit. At the time of the adoption of this By -Law amendment, Lot 32 was held in separate ownership from abutting lots and was protected by the zoning freeze provisions of Chapter 40A, Section 6, Paragraph 4. In any event, it does not appear that the 1978 By -Law set -back provisions impact Lot 32. In or about 1987, the Town of North Andover again amended its Zoning By - Laws, including amendments to the Watershed Protection District (See Section 4.136, et seq.) The 1987 By -Law amendment replaced the no cut and no construction zones with "non disturbance" and "non discharge" zones, with the following lake set -backs: Non -disturbance - 250 feet. Non -discharge - 325 feet. The 1987 By -Law also created a new set -back requirement from the edge of all "wetland resource areas," as follows: Non -disturbance - 100 feet. Non -discharge - 325 feet Section 4.136 was again amended in or about 1994. The 1994 By -Law amendment created 4 zones within the Watershed Protection District including the following: 2(b)(ii) Non -discharge - from 250 feet to 400 feet from the annual mean high water mark and 150 feet to 400 feet from the Wetland Resource Area. Non -disturbance 2(b)(iii) - 150 feet to 250 feet and 75 feet to 150 feet from edge of wetlands. Mr. Michael Maguire February 2, 2001 Page 3 Non -disturbance 2(b)(iv) - Conservation District - 150 feet from annual mean high water mark and 75 feet from edge of Wetland Resource Areas. Section 2(f) of the 1994 By -Law specifically exempts lots created prior to October 24, 1994 from the expanded set -back provisions of the By -Law. We are informed that the wetland resource set -back provisions of the 1987 By - Law amendment would impact the planned single-family structure to be constructed on Lot 32, if said By -Law applied. In our opinion, the set -back provisions of the above referenced Watershed District By -Law do not apply to the subject lot by virtue of the zoning freeze protection set forth in Chapter 40A, Section 6. In the case of Mscisz vs. Zoning Board of Appeals of Middleton, 4 LCR 10(1996) Justice Kilborn of the Land Court ruled that side, front, and rear yard set -back requirements of the Zoning By -Law do not apply to lawful preexisting non -conforming lots. The Court found that Chapter 40A, Section 6 contains no condition or reservation as to the scope of the protection afforded non -conforming lots. Our opinion acknowledges that the Watershed Protection District is an "Overlay District" which has been defined as follows: "A mapped overlay district superimposed on one or more established zoning districts and may be used to impose supplemental restrictions on uses in these districts, permits uses otherwise disallowed, or implement some form of density bonus or incentive zoning program." Zile ler, "The law of zoning and planning," Section 1.04(1996). Overlay districts are subject to the same scrutiny as the underlying zoning district. In the case of Boch vs. Town of Tisbury, 5 LCR 15(1997), Judge Scheier invalidated the Town of Tisbury's waterfront overlay district because it violated the uniformity requirements of Chapter 40A, Section 4. Judge Scheier saw no reason to treat the overlay district any differently than the underlying zoning district. Accordingly, the enactment of the Watershed Protection Districts in the Town of North Andover should be treated no differently than the enactment of any other amendments to the underlying residential district for purposes of analyzing the "grandfathered lot" status of the locus. In 1987, when the By -Law amendments were adopted which impact the locus, the lot was held in separate ownership and was entitled to the protection of Chapter 40A, Mr. Michael Maguire February 2, 2001 Page 4 Section 6, Paragraph 4. It is our opinion, therefore, that the By -Law amendments do not apply to the locus. To the extent the 1978 By -Law is deemed to potentially impact the locus, the same reasoning applies. The locus is similarly protected as a "grandfathered" lot from the provisions of the 1978 By -Law. Should you have any questions or comments in this matter, please feel free to contact us. Very trulyours, tephen A. Nelson SAN:rgm SENT BY: SHEA DANGOAA; 0786705763; FEB -21-01 1:21pm; PAGE 2/3 WKI., W ,,•n •aNliwliNAM voebm .711 NW 09 Oak R44" *Met madmi 66114factaft. i '� 4 W 1i 1O#AwlR lg�omu@t moda hormot WNW ON""* - 4111111611011114 Tba land with tho-WLIAI aftow, >< hireacker plav*arevol'ye 3,,:t �% 16 -shun as late 7, 6, 31 an 3,13 le F&O.- North ArAovor, bim I 11491tted "WOLCAVC ?Imo of Lend af on&t'ftnd W"dund, loo III In NIiIcth Andavet, 'Iftpo""ttol deset 27AVost-23). moTfi-nink C", fttrastoa which pXm to roeoc"dvLA pe,"!O, oloarift pAgiotty '@I vesdo m hen .0754s. raw a more detailed deveriptI94 of,matd lots sea said plan., 11to fetttfiam,to etr Vote mootdod with emu Imedo iioek 1177, Pam It. gmeeptift. and isastwins from We oodve7W4. the too. W-11cfAlf nth- A. opposite said lots but etwce Ls-hatoby panced- to * aW awastem, and its. , OW666044TO it U914 dw .1dobt to Uff !rifts Path out to."a land load . 16 ODNOW 11110k 411 604TO Witled tVA"90. seine Parg of me saw ptemases- convoyso to granter %y.- owistim.11 Vqvttor, doted july U. 1976, reser"d feW pods So& 1267, take It. flubjeot to a Ummar"sive Commi If recorded iIIi'm said, bases I,.-, too 1306 pose 331. 14: -Z 40 :-14. 44r .0m. K4 IT TWI' T q-1 I P fl if I'll ti 1'i SENT BY: SHEA * DANGORA; 9786705763; FEB-21-Oi i:22pm; PAGE 3/3 I ji • Mk Prosidat kift d* k NAM sm Iwo MA KAMBAIL iKCI so V Ilk. vc�UL .4 7w PON* IPP el dm and :OW 0. Tattle, Jr., Inevftwe ,00 ymplarmwK 4 kow fm in OW Ana a do. pre An a2lbM-1 AlitJ SO til ul An a2lbM-1 AlitJ SENT BY: SHEA - DANGORA; 9786705763; FEB -21-01 1:20PM; PAGE 1 566 Boston Road Bivedca, Massachusetts 011121 (978) 667.2757 Fax Number. (978) 6745763 Fax To. % i ke'.-2 , Pax: ' � a Phone: Shea & Dangara / � Froms i Pages: C , e Date: �.. RA: Z4 f1 3 z-- CC: urgent ❑ For Review O Please Comment ❑ Pismo Reply od IF YOU 00 NOT RECEIVE ALL PAGES OF THE FAX OR HAVE ANY PROBLEMS RECEIVING, PLEASE CALL (978) 667-2757 AND ASK FOR RUTH CONFIDENTIALITY NOTICE: The documents accompanying this telecopy transmission contain confidential or privileged Information from the above law once. The information Is intended to be for the use of the individual or entity named on this imnsmisslon sheet if you are nct the Intended recipient, be aware that any dtsciosura, copying, distrlbutlon or use Of the contents ofthis tetel epholne ed information is prohibia ted. If you have received this telecopy In error, p fY immediately so that we can arrange for the retrieval of the original documents at no cos: to your office. Thank you. 141ge (! do d,e6 17 A -o l/I ,(: �' 0'p q't " � � y h 4- CA LO V U U