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Home My WebLink AboutMiscellaneous - Exception (555)Town of North Andover NORTH OFFICE OF COMMUNITY DEVELOPMENT AND SERVICES ° 146 Main Street �� Q�AA TSO �PP`y �y KENNETH R. MAHONY North Andover, Massachusetts 01845 �SSACNus�t Director (508) 688-9533 Notice is hereby given that the Board of Appeals will hold a public hearing at the Senior Citizen's Center located at the rear of Town Hall Building, 120 Main Street, North Andover, MA. on Tuesday the 13th day of February 1996 at 7.30 o'clock P.M. to all parties interested in the appeal of Ten Forty Nine Realty Trust requesting a Special Permit pusuant to Section 9, paragraph 9.1 of the Zoning Bylaw so as to make minor interior alterations to a non -conforming structure. Said premise is located at 1049 Turnpike Street which is in the I-1 Zoning District. Plans are available for review at the Office of Community Development & Services, Town Hall Annex, 146 Main Street. By the Order of the Board of Appeals William J. Sullivan, Chairman Publish in the North Andover Citizen on 1.24.96 & 1.31.96. 1049 TURNPIKE STREET LEGAL NOTICE TOWN OF NORTH ANDOVER NOTICE OF PUBLIC HEARING Notice is hereby given that the Bcara of Ao- peals will hold a public hearing at :he Senior Citizen's Center located at the rear of the Town Hall Building, 120 Main Street. North Andover, MA on Tuesday, the 13th day of February 1996 at 7;30 o'clock P.M. to ail parties interested in the appeal of Ten Forty Nine Realty Trust requesting a Special Per- mit pursuant to Section 9, paragraph 9.1 of the Zoning Bylaw so as to make minor inte- rior alterations to a non -conforming struc- ture. Said premise is located at 1049 Turncike Street which is in the 1-1 Zoning District. Plans are available for review at :ne Office of Community Oeveiooment 3 Services, Town Hall Annex. 146 Main Street By the Order ofthe Bcara of Acceais William X Sullivan. C`airman North Andover Citizen ON25. 01!31.96 BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 Julie Parrino D. Robert Nioetta. Michael Howard Sandra Starr KatWeen Bradley Colwell R�e1.iv.U- Town of North Andover IQY G. E. OFFICE OF T0W:t4, CtE N ORT-NOMWNITV DEVELOPMENT AND SERVICES P!aR LQ 9 15 '54; 146 Main Street North Andover, Massachusetts 01845 Anv �t filed wits;:,; 620. the Cat: c , --: i -. is l\,otice in the Oliice of the Town Cie. BOARD OF APPEALS Notice of Decision Property: 1049 Turnpike Street Ten Forty Nine Realty Trust Date: 3-20-96 701 C Salem Street Petition: 002-96 North Andover MA 01845 Hearing: 2-13-9 - 3-12-96 The Board of Appeals held a regular meeting on Tuesday evening, March 12 , 1996 upon the special permit application of Ten Forty Nine Realty Trust under Section 9, Paragraph 1 of the Zoning By Law. The applicant has submitted a written request to withdraw the application without prejudice. o A 4 x�(.09 y� • The following members were present and voting: William Sullivan, Robert Ford, John Pallone, Scott Karpinski, Raymond Vivenzio, Joseph Faris, Ellen McIntyre, The hearing was advertised in the North Andover Citizen on 1/24/96 and 1/31/96 and all abutters were notified by regular mail. Upon a motion by Robert Ford and seconded by John Pallone, the Board voted to allow the applicant to withdraw the petition without prejudice. Voting in Favor: Robert Ford, John Pallone, Joseph Faris, Ellen McIntyre, and Scott Karpinski. Board of Appeals, William Sullivan, Chairman BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 J POSTERNAK, BLANKSTEIN & LUND ATTORNEYS AT LAW 100 CHARLES RIVER PLAZA BOSTON, MASSACHUSETTS 02114-2723 TEL 617-973-6100 FAX 617-367-2315 WRITER'S DIRECT DIAL NUMBER 617-973-6274 Civil Clerk Essex Superior Court 34 Federal Street Salem, MA 01970 Re: Agnes M. Kmiec v. Willla Civil Action No. 95-2207 Dear Sir/Madam: ERIK LUND, P.C. NOEL G. POSIERNAK, P.C. RICHARD K BLANKSIEIN, P.C. DONALD H. SIEGEL, P.C. DAVID M. SALTIEL KENNETH A. KORB IRA J. DEITSCH ROSANNA SAT7LER MICHAEL J. STONE GEORGE A. BERMAN RUSSELL IC DUNNING LAURENCE FIELD GERALD J. BILLOW JOHN EGAN LAWRENCE L ATHAN, JR. ROBERT M. SCHLEIN SIBLEY P. REPPERT CATHERINE J. SAVOIE LAWRENCE A. KLE TER MICHAEL J. WOLFSON STEVEN S. BROADLEY CYNTHIA C. SMITH JEFFREY W. ARMSTRONG DUSITN F. HECKER DAVID Y. LI JO -ANN M. MARZUL.LO ANDREW B. WHITE PAUL A. IZZO VALERIE C. SAMUELS SUSAN S. RIEDEL DAVID B. WESTEBBE DEBORAH DIVERDI CARLSON DAVID C. HARLOW SUSAN E. COHEN October 18, 1995 JON C. COWEN JOSEPH S. SEAMAN JAMES M. LYLE ANDREA F. NUCIFORO, JR. JOSEPH P. CRIMMINS ROGER L FRENCH TIMOTHY C. MCFARLAND LAWRENCE S. JACOBSON WILLIAM J. DIMMIG DAVID P. O'BRIEN MARYANNE RYAN DEIRDRE M. GIBLJN OF COUNSEL JOSEPH R. SCHMIDT STANLEY N. WALLERSTFIN ROBERT O. RESNICK � I W � �p M'g !9C'5 ij BOARD OF APPEALS Enclosed please find the Answer of Charles Piscatelli and William K. Barrett, Trustees of Ten Forty Nine Realty Trust. Would you kindly docket and file the same. Thank you for your attention to this matter. Should you have any questions, feel free to contact me. Very truly yours, Catherinj�rJ. Savoie CJS /mf s enclosure cc: Thomas F. Caffrey, Esq. North Andover Zoning Board of Appeals:/ Town Clerk, Town of North Andover ATF14805/8894-1 COMMONWEALTH OF MASSACHUSETTS ESSEX, AGNES M. KMIEC, Plaintiff V. WILLIAM J. SULLIVAN, WALTER SOULE, RAYMOND VIVENZIO, ROBERT FORD, JOHN.PALLONE, SCOTT KARPINSKI, JOSEPH F. FARIS, ELLEN MCINTYRE, in their capacity as Chairman and Members of the North Andover Zoning Board of Appeals, and THE TOWN OF NORTH ANDOVER, MASSACHUSETTS, and CHARLES PISCATELLI AND WILLIAM K. BARRETT, TRUSTEES OF TEN FORTY NINE REALTY TRUST, Defendants SUPERIOR COURT CIVIL ACTION NO. 95-2207 ANSWER OF CHARLES PISCATELLI AND WILLIAM.R. BARRETT, TRUSTEES OF TEN FORTY NINE REALTY TRUST The defendants, Charles Piscatelli and William K. Barrett, Trustees of the Ten Forty Nine Realty Trust ("Ten Forty Nine") answer the complaint as follows: FIRST DEFENSE 1. Ten Forty Nine admits the allegations set forth in paragraphs 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 15, 16 and 22 of the complaint; denies the allegations in paragraphs 24, 25, 26, 27, 28, and 30 of the complaint; and is without knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations set forth in paragraph 14. 2. Answering paragraph 7, Ten Forty Nine states that since G.L. c. 40A, §17 is an exclusive remedy, the court has no J jurisdiction to hear this case ,as a declaratory judgment action under G. L. c. 231A, §§1 and 2. 3. Answering paragraphs 17, 18, 19, and 20, Ten Forty Nine states that these paragraphs simply quote the language of the North Andover Zoning By-law which speaks for itself. 4. Answering paragraph 21, Ten Forty Nine admits that the Board held a hearing on September 12, 1995 on Ten Forty Nine's request for a special permit and that the plaintiff's son, Louis J. Kmiec, Jr., presented an opposition to the special permit request, and Ten Forty Nine neither admits nor denies the characterization of Mr. Kmiec's presentation set forth in paragraph 21. 5. Answering paragraphs 31 and 32, Ten Forty Nine states that G. L. c. 231A, §1 does not apply to this case which is governed exclusively by G. L. c. 40A, §17. SECOND DEFENSE The plaintiff's complaint fails to state a claim upon which relief can be granted. THIRD DEFENSE The plaintiff, Agnes M. Kmiec, is not an "aggrieved person" under G. L. c. 40A or the North Andover Zoning By-law and, therefore, has no standing to bring this action. FOURTH DEFENSE Since the plaintiff's own property is non -conforming under the North Andover zoning by-law in the same way as the property that is the subject of the proposed special permit, the plaintiff has no standing to bring this action. :W= A FIFTH DEFENSE On information and belief, the plaintiff's motive in bringing this action is to enable her son, Louis J. Kmiec, Jr., to pursue his own development plans in the area and, as such, this action has been brought in bad faith and with malice. WHEREFORE, the defendants, Charles Piscatelli and William K. Barrett, Trustees of Ten Forty Nine Realty Trust respectfully request that this court: (a) dismiss the complaint of the plaintiff with prejudice; (b) award defendants their reasonable attorney's fees and costs defending this action; and (c) grant such other relief as the court deems meet and just. -3- Respectfully submitted, CHARLES PISCATELLI AND WILLIAM K. BARRETT, TRUSTEES OF TEN FORTY NINE REALTY TRUST, By their attorneys, Catherine J. Savoie, BBO 544599 Posternak, Blankstein & Lund 100 Charles River Plaza Boston, MA 02114 (617) 973-6100 i CERTIFICATE OF SERVICE I, Catherine J. Savoie, hereby certify that I caused a copy of the foregoing to be served, by mailing a copy of same, postage prepaid, to Thomas F. Caffrey, Esq., 300 Essex Street, Lawrence, Massachusetts 01842, the North Andover Zoning Board of Appeals, 146 Main Street, North Andover, Massachusetts, 01845 and the Town Clerk of the Town of North Andover, Town Hall, 120 Main Street, North Andover, Massachusetts 01845 on this 17` -day of October, 1995. ATF14AD5/8894-1 -4- Ste' Catherine . Savoie J LEONARD KOPELMAN DONALD G. PAIGE ELIZABETH A. LANE JOYCE FRANK JOHN W. GIORGIO BARBARA J. SAINT ANDRE JOEL B. BARD EVERETTJ. MARDER PATRICK J. COSTELLO JOSEPH L. TEHAN, JR. WILLIAM HEWIG III THERESA M. DOWDY DEBORAH A. ELIASON 3OARD of APPEALS' KOPELMAN AND PAIGE, P. ATTORNEYS AT LAW 101 ARCH STREET BOSTON, MASSACHUSETTS 02110-1137 BOSTON OFFICE (617) 951-0007 FAX (617) 951-2735 NORTHAMPTON OFFICE (413)585-8632 WORCESTER OFFICE (508)752-0203 Michael A. Gerstein, Esq. Phillips, Gerstein & Holber 25 Kenoza Avenue Haverhill, MA 01830 do a October 30, 1995 Re: Bierbrier Development, Inc. v. Frank Serio, Jr., et al. (Town of North Andover Zoning Board of Appeals) Essex Superior Court C.A. No. 94-1281 D Dear Mr. Gerstein: I have reviewed the Stipulation of Dismissal which you provided in the above matter and find it acceptable, with one comment. The words "and without costs" should be added, as I have noted on the enclosed, signed Stipulation. Please either file the enclosed, as edited, with the Court or send me a revised version for signature. If you have any questions in this regard, please do not hesitate to contact me. Thank you. KEC/nh Enc. cc: Acting Town Manager Zoning Board of Appeals Building Inspector PRINTED ON RECYCLED PAPER CUTLER "111CKNIGHT HYLAND N BANKS DONESKI SANDRA CHARTON ILANA M. QUIRK BRIAN W. RILEY MARY L. GIORGIO KATHLEEN E. CONNOLLY JOHN G. GANNON KURT B. FLIEGAUF MICHELE E. RANDAZZO PETER J.FEUERBACH October 30, 1995 Re: Bierbrier Development, Inc. v. Frank Serio, Jr., et al. (Town of North Andover Zoning Board of Appeals) Essex Superior Court C.A. No. 94-1281 D Dear Mr. Gerstein: I have reviewed the Stipulation of Dismissal which you provided in the above matter and find it acceptable, with one comment. The words "and without costs" should be added, as I have noted on the enclosed, signed Stipulation. Please either file the enclosed, as edited, with the Court or send me a revised version for signature. If you have any questions in this regard, please do not hesitate to contact me. Thank you. KEC/nh Enc. cc: Acting Town Manager Zoning Board of Appeals Building Inspector PRINTED ON RECYCLED PAPER 4 \qv — � J� i �' I BOARD F PEA'I ESSEX, ss COMMONWEALTH OF MASSACHUSETTS BIERBRIER DEVELOPMENT, INC. FRANK SERIO, JR., et al SUPERIOR COURT DOCKET NO. 94-1281D STIPULATION OF DISMISSAL WITH PREJUDICE Pursuant to Rule 41 (a) (1) (ii), the parties herein have stipulated that this action on behalf of Bierbrier Development, Inc., Plaintiff herein, be dismissed with prejudice as to the above named parties. GY)d arc 00- c,0_s-�_s For the Defendant, Town of North Andover By its attorney, Kathleen Connblly, Es. KOPELMAN & PAIG JC 101 Arch Street Boston, MA 02110-1137 (617) 951-0007 For the Plaintiff, Bierbrier Development, Inc. By its attorney, /Michael A. Gerstein' Esq. PHILLILPS, GERSTEIN, HOLBER & CHANNEN 25 Kenoza Avenue Haverhill, MA 01830 (508) 3 74-113 1 n�1p 19t9R U SEP 2 1 ' JUUL-� Town of North Andover Office of Community Development and Services BOARD OF APS 146 Main Street ELS North Andover, MA 01845 Ten Forty Nine Realty Trust 4 Roach Circle North Reading, MA 01864 RE: Petition # 042-95 1049 Turnpike Street We hereby request to withdraw our request for variances pursuant to Section 7, Paragraph 7.1, 7.3 and Table 2 (Lot and Zoning Dimensions) of the Zoning Bylaw. Sincerely, Ten Forty Nine Realty Trust William K. Barrett Trustee 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. WILLIAM HEWIG III THERESA M. DOWDY DEBORAH A. ELIASON NOV - I 1995 BOARD OF APPEALS KOPELMAN AND PAIGE, P. ATTORNEYS AT LAW 101 ARCH STREET 1 BOSTON, MASSACHUSETTS 021 10-1 137 BOSTON OFFICE (617)951-0007 FAX (617) 951-2735 NORTHAMPTON OFFICE (413) 585-8632 WORCESTER OFFICE (508) 752-0203 Michael A. Gerstein, Esq. Phillips, Gerstein & Holber 25 Kenoza Avenue Haverhill, MA 01830 :10 October 30, 1995 Re: Bierbrier Development, Inc. v. Frank Serio, Jr., et al. (Town of North Andover Zoning Board of Appeals) Essex Superior Court C.A. No. 94-1281 D Dear Mr. Gerstein: I have reviewed the Stipulation of Dismissal which you provided in the above matter and find it acceptable, with one comment. The words "and without costs" should be added, as I have noted on the enclosed, signed Stipulation. Please either file the enclosed, as edited, with the Court or send me a revised version for signature. If you have any questions in this regard, please do not hesitate to contact me. Thank you. KEC/nh Enc. cc: Acting Town Manager Zoning Board of Appeals Building Inspector PRINTED ON RECYCLED PAPER CUTLER "11CKNIGHT HYLAND DBOWESN BANKSDONESKI SANDRA CHARTON ILANA M. QUIRK BRIAN W. RILEY MARY L. GIORGIO KATHLEEN E. CONNOLLY JOHN G. GANNON KURT B. FLIEGAUF MICHELE E. RANDAZZO PETERJ.FEUERBACH October 30, 1995 Re: Bierbrier Development, Inc. v. Frank Serio, Jr., et al. (Town of North Andover Zoning Board of Appeals) Essex Superior Court C.A. No. 94-1281 D Dear Mr. Gerstein: I have reviewed the Stipulation of Dismissal which you provided in the above matter and find it acceptable, with one comment. The words "and without costs" should be added, as I have noted on the enclosed, signed Stipulation. Please either file the enclosed, as edited, with the Court or send me a revised version for signature. If you have any questions in this regard, please do not hesitate to contact me. Thank you. KEC/nh Enc. cc: Acting Town Manager Zoning Board of Appeals Building Inspector PRINTED ON RECYCLED PAPER I �E�'�EIVE i COMMONWEALTH OF MASSACHUSETTS ESSEX, ss BIERBRIER DEVELOPMENT, INC. V. FRANK SERIO, JR., et al SUPERIOR COURT DOCKET NO. 94-1281D STIPULATION OF DISMISSAL WITH PREJUDICE Pursuant to Rule 41 (a) (1) (ii), the parties herein have stipulated that this action on behalf of Bierbrier Development, Inc., Plaintiff herein, be dismissed with prejudice as to the above named parties. aY, wi--N 60- CO, -31 For the Defendant, Town of North Andover By its attorney, Kathleen Condolly,- Es . KOPELMAN & PAIG , 101 Arch Street Boston, MA 02110-1137 (617) 951-0007 For the Plaintiff, Bierbrier Development, Inc. By its attorney, "Michael A. Gerstein, Esq: PHILLILPS, GERSTEIN, HOLBER & CHANNEN 25 Kenoza Avenue Haverhill, MA 01830 (508) 374-1131 WILLIS and WILLIS Attomeys-at-Law 160 Pleasant Street North Andover, Massachusetts 01845-2797 Telephone (508) 685-3551 JOHN J. WILLIS JOHN J. WILLIS, JR. October 3, 1995 Mr. Robert Nicetta North Andover Building Inspector Town Hall North Andover, MA 01845 Fax (508) 794-8363 Re: Renovations to 1049 Turnpike Street, North Andover, MA Dear Bob: I have been retained by Bill Barrett in connection with the above captioned project. From my discussions with him, he will be doing an upgrade of the existing structure which will expand the existing building by approximately 700 square feet to a total floor area of 1,710 square feet. To accommodate the public who will have access to the building, he has proposed a parking lot and driveway containing 6 regular parking spaces and 1 handicapped parking space. This is 1 space in excess of the Bylaw requirement of 6 for the ultimate finished useable space of 1,710 square feet. A question seems to have arisen as to whether or not in this instance a site plan review under Section 8.3 of the Bylaw will be required. The purpose section of that portion of the Bylaw states that it is meant to promote "a uniform system of review of proposed construction". You will note that the Bylaw emphasizes con- struction. The proposed renovation (the construction) will expand the useable space from approximately 1000 square feet to 1710 square feet. I emphasize the word construction as the Bylaw is addressing that and not parking spaces or their requirements. Going to the next section of the Bylaw, Section 8.31 (1) lists the types of projects which require site plan review. Section 8.31 (2) lists the developments which are exempt from the site plan review. Under this Section 8.31 (2) (b) small construction projects of under 2,000 square feet are exempt. There is no qualification in this section regarding the number of parking spaces. No where else in the exemption section is there any mention of parking spaces as a qualifier. Page 2 Mr. Robert Nicetta North Andover Building Inspector October 3, 1995 The word "exempt" under Black's Law Dictionary is defined as: "to relieve, excuse, or set free from a duty or service imposed on the general class to which the individual exempted belongs; as to exempt from militia service." An exemption is an absolute right as long as the terms for the exemption are met. The main section of the class to which the exemption applies can not logically have a qualifier which would modify the exemption section. I would hope that you would concur with my reading of the Town Bylaw and in that case my client should be allowed to continue with his permitting process. If you do not concur with my opinion and believe that the limiting factor in this instance is the fact that there are in excess of five parking spaces shown for the proposed development, then I would ask you to so rule in writing so that we make take appropriate action which may include an appeal of your determination. If you have any questions or require any clarification of this letter, I would be more than happy to discuss any issues you may wish to raise. Sincerely, JJW:C 7 5 Ten Forty Hine Realty Trust 1049 Turnpike St. No. Andover, Ma. 01845 Mr. Walter Soule, Vice Chairman North Andover Board of Appeals 146 Main St. Town of No. Andover, Ma. 01845 RE: Public Hearing of Feb 13, 1996 ECEIIIE C � ,o" .-- Dear Mr. Soule, My name is William Barrett. I was before your board on February 13, 1996 as an applicant in my capacity as trustee of 1049 Realty Trust. I take great offense to your characterization that I am, or I have been, dishonest in my dealings with your board on a previous filing. Moreover, I am shocked that you would make such a reckless charge to the public in an open forum. Have you ever heard of an honest mistake? How could you so easily take the position that errors found in our initial plan of the building were an attempt on our part to deceive the. board? The initial set of plans were drafted by a non- professional. The measurements for those plans were taken from an assessors plan found at town hall. An assumption was made that the first floor area shown on these plans were substantially correct. I admit, I was negligent in not instructing the drafter of these plans to verify all measurements on site. However, this does not in any way, shape or form impeach my honesty in this filing. If this application had not been opposed the slight differences between the initial plan and the subsequent certified plan would have been irrelevant. I assure you I will not take these applications so lightly in the future. The current application before you includes two sets of plans. The set attached to the application was intended to suffice while I waited for Mr. Nicetta, the towns zoning enforcement officer, to respond to the following two questions asked through Julie Parrini, Mr. Nicetta's assistant: 1) Would a site plan be required with this application, since there in no exterior work being done? 2) Would additional floor plans be required since the previous filing had provided certified floor plans? One week later I called Julie to see if Mr Nicetta had responded. Julie explained he had not and she was no longer handling these matters for the town. I then decided to see Mr. Nicetta myself. I did this the following day. Mr. Nicetta explained he would be on vacation for this meeting, but he suggested I provide as much detail as I could. I did this through the second set of floor plans and additional copies of the original site plan. 4- t r You stated on Tuesday evening that you cannot understand how the applicants before your board can continue to file insufficient plans. Yet, one of your own board members this night asked why my plans were not stamped by an architect. This is not a requirement of this board as I pointed out at the hearing. Lastly, I must take issue with your handling of our application before your -board on Tuesday night. The board is charged with determining that the request for relief in our filing is or is not more detrimental to the surrounding properties. Yet you have continued the public hearing because you wanted Mr. Nicetta's input on this matter. Mr. Nicetta had ample time to act on this matter had he decided to do so. All parties involved were aware that Mr. Nicetta would be on vacation for this meeting. However, the meeting was scheduled anyway and to my knowledge no request for additional information was conveyed to Mr. Nicetta. I believe your board had the information it needed to act on this matter on the evening in question and chose not to do so. I cannot imagine why you would chose to continue to delay your finding. The board had previously determined that my exterior improvements to the property,(ie: roof dormer and exterior staircase), would not be more detrimental to the neighborhood than the existing building. How can the board not make the same finding to these minor, strictly interior alterations that will enable the property to be used in a manner expressly permitted under your bylaw? In this case no decision was worse than a negative decision; and this further delay only supports Mr. Kmiec's harassment and frivolous attempts to block my absolute right to improve and occupy this property for office use. Mr. Soule, I deal with the boards, agents, inspectors, and employees of this town on a regular basis. I urge you to try to verify your suspicions of my dishonesty with any of these people. I believe you will find I am indeed quite the opposite. I believe they will verify I have always handled myself in an - honest and forthright manner. This is not to say I have npt made mistakes, but never dishonest. I insist that you retract your erroneous statement in the same manner in which you stated it; that is, in an open forum and at the earliest opportunity. Sincerely, 57 By C William K. Barrett, Trustee For Ten Forty Nine Realty Trust Telephone # 508-682-2320 cc:Robert Nicetta, Building Inspector James M. Lyle, Esquire Kevin Mahoney, Interim Town Manager TEN FORTY NINE REALTY TRUST 701(C) SALEM STREET NORTH ANDOVER, MA 01845 March 12, 1996 Board of Appeals Town of North Andover 146 Main Street North Andover, MA 01845 Attention: William Sullivan, Chairman Re: 1049 Turnpike Street North Andover, MA - Pending Application for Special Permit Gentlemen: h Reference is hereby made to that certain application. submitted by Ten Forty Nine Realty Trust for a special permit under Section 9 of the North Andover Zoning Bylaw (the "Application") regarding certain minor alterations proposed to the interior of the building located at the above -referenced address. The Application was considered by your Board at a public hearing conducted on February 13, 1996. Regrettably, the Board took no action and continued the matter for further consideration at the next scheduled meeting on March 12, 1996 due, primarily, to the absence of the Building Inspector at the initial hearing. .In light of (i) the foregoing delay in acting upon the Application, and (ii) the continuing, frivolous opposition to the owner's rightful use of the subject property by representatives of Agnes M. Kmiec, an abutter thereto, it has been determined that the necessary expenditure of time, energy and money to continue to pursue the work specified in the Application i9 not presently warranted. Accordingly, please accept this letter as a formal request, pursuant to §16 of Massachusetts General Laws. c.40A and 510.9 of the North Andover Zoning Bylaw, that the Application be withdrawn without prejudice, with the approval of the Board of Appeals. Thank you for your anticipated cooperation. very truly yours, By•_ Q i iam arrett, Trustee Ten Forty Nine Realty Trust cc: Robert Nicetta, Building Inspector James M. Lyle, Esq. J1C.K066EC/B59i-5 _Jlwma, 3 -7 C,atptPrecy Alornecy al X., P. C... J�iomub qe'/ V n P.O. R.. 1317 300 G�eex �freef, oCawrence, M. 01842 /Y/alll.w-i. glr,,y 508-686-6151 ..iax 508-683-8188 aA. admilled in VJJ. , 21; March 1, •1.9,96��. _ Robert Nicettaui=ldi Inspector Town of North'Andover 146 Main Street ...s.A.,�.,,....�r'North Andover;-_MA._.---�-- �.-_,...__>.....�.,...._ - _-, --,_ - _•�- -,..a- _-a.��-_�--� - _ - - - -- - ... . Rte.::: �.•:. - - -_---Re: _�APPlrcation-f-ar-°Bui1•ding Permit, -tet --149. -ke--fit—:eta- a A: _ _ wear Ixx�spector_,Niee,. -- - ,you�know,,�thxs`frrm represents A4HsMM c�►ec� X001 Turnpike -_Street, North— Andover, Massachuseftsi-fier ias Y.._.t. S against WilliamK = Barrett -and Charles Prsatel�r �stsx o�8� 1049'Realty_Trust whicis the owner of .1 X49_ lurnptree,� North Andover, Massachusetts (the "Property")-.-- ---The - purpo s- Property")-:-- --The-purpose-of�th�_s ��ettervis to bring.-- Zoning Board -of -7A ppeAl-s,' ip - to --date with, - eggarA7eta se,yeori zoning=viol=atrons- hat ----we recently - Pr.opert_y.�:I.t-3sr,-auos.i-ti.on .that the owners o.f1 04r9.'urup�„k _ Street "have performed =`= and continue to perform �aorke cessary "buildi i tzt, andJo"r�::sP;ecia-1permit- erformance of.Ythz8"-:Wo k -w -th ,�t-1-it --.=7 appropriate permits is unlawful, and should be stopped _ immediately. Enclosed are representative photos ywhich show�+tYie = extent of the work that has been performed to date: _SHEET r _-ru--.erac��.e.•�,-,.,m,�: __�-aa�.a,--�.:.�ma�e..:. ^m:: _ ,.._. .. . _ �.ja' -- s.:� �yeg• #s+E.., �: . •The two-- photos- h s -sheet .were taker o: e -we side The b1 ic. t e _taken on November 15 1995; the color photo was taken ori From these..--phatps ."L_is :-clear that o;V_Jaas:_l�eenF replaced w ilr a d6or-on the second floor, -.an_ d =a -new w hdour . _..._.... added next to that door. Further, -a window'hasfbeen removed on the first floor. We have found no building permits -�--- authorizing this work by the owners. MAR - 1 ✓homa� � C.a��re�, �fforner� of oCaw, � (-.. D. Robert Nicetta, Building Inspector March 1, 1996 Page -2- SHEET NO. 2 The two photos on this sheet were taken -from the -east .side --.-.-.—. - of the house. The black and white photo was taken on - - November 19, 1995; the color photo -was taken-bn February -21, 9 _ 196 v _._ _ .,...From .these :phot.os , � .you `can. -see -that.t"he slope '`of:�the. Y 6.f ' y :: a.over the door has been altered. In addition, the single window_whichr_appeared_in-the- earl ier_photo_ has.�been_4replaced rwith Ttwo, windows gain, -;,no- building erm s w ere�„ssue:d , - - -- - -that - authoriz.ed= th-s�_work by the owners---------------. ....0 .. rawer �.. _ .... _......_ .—....`..._ .. ....my+... ac.+..=..sa..... - -..... aw.•��+s..m�w...o-. .,.a.r.-.ua.+ .Jr^i. v . .-. . SHEETS NO. 3 -AND 4 ATI of -the _photos on these two sheets were _ aken on: 'ebr ar' -�- - _ 21, _1996 from the first floor of the na� rth' side of die ms house .. . .!...-.4ev..'.--�a-, a„�....-_...�___ _ _..wac�•-.,'ti.:.w---:s..,�,...s-,�.-.X.e,-...:..-..� _ _. _ _. _. ..- ®-.34p �-::..a,+'�.<-.:a-s.....e�a.-.a. -:- .-asv � �..f,'�N.-..+.w�i'-�'S5"--„-�'r.�..,..A.- From these photos, it is clear that the owners -have installenew7ccTzenette, and erec eca :wail-hanour'� _s:epara't°es—lze`�i`c tcheriette-from a neV' afnroom. ""mss yOU-k r^ ""the owners raveVtrap i ed' far a perm t. n0_5 ' •' "._ • "k-itc�fienet-e; but- wave^'not received�approval'or proposal- Ff rom--the-Zoning -Board of -Appeals - - 4 sa ,• - ______. _The-photos__on this.., sheet -were top photo . was taken .from the ..first, :f loon . of ,the,4ougq_ .There .are .three -,now e-ect.� s: ble in the_=bottom left :portion --o- ---the-hoto�, d a •new - r ---relel ctri�cawre- hangs from the ceiling trt��-- :bot-t-om''pha'to--Nwasr�-taken- in the ase ttfftI 5 tlli�e' w-- Bot-h_the old --and__ new__electr_ical servlc.e- e_ v s bDE �d hese - fi _ --In add3tion,the3_ net-pla umbing service Cth cst-r-an p-1... s�ble� n�th -s--photo ''-N building permits -have been obtainedao _perfo"rm a y ':of this work. Based on the foregoing evidence, it is.our-position that the owners of the Property are knowingly performing-...renovat-ions -and . ____ W < J�oma� _�F.of Z.., P.C D. Robert Nicetta, Building Inspector March 1, 1996 Page -3- structural work at the site without obtaining the necessary permits or variances. - - K At the hearing on February 13, 1996, the owners of the 4 Property came -before the Zoning Board of Appeals as a "party- - - " =a rieved b a decision "of the Building Ins e' -t 'The Bu �Idzn - __Inspector- had denedtheowners' request for a-Bull-d<ing`Permt - -=-= - becausethere `was' =rra '"otabl_ e -water nor, anapro�red�ewere`-d _ _ system" at the Property. The owners also applied for a special �permit �pursuant to Section 9, paragraph 1 of the Zoning Bylaws to perform"Certain a`l'eratioris to the interior of the pr eml°"'I'r�" �_�__ __- - Board conte-ne -tie wearing without a -meeting finding to _ - --y-4 - - _-- .- ..- - Y . ss _ ...+—r.... _,.:s �.,a-. _�. .::»-t—t: _-w.:_-'^�.:�'.aw..x,.�...w. ,. _ .- - .ie--•.ro.ax...iY+a� _ •.etil+ .as ._"�wi.':�`si.: "�F"�'`.'. violations of :tie :honing bylaWs-:� hat _ - =Y= = have•.:=occurred--in-. th1s=c__ase; . it is our P -=' Buil'din PeYmits S_ ecial- Permits variances csrr�° an 'ae:r_ _ - - - , g--,. - ,a,.. P � Y _ _ autYori'zat'i-ons should"; be issued to the owners 104.9 Tr�ie Street urr it the= current:=violations are,--ad�re�d Y ' - Please let me know if you have any questions about---the------ 1 bout---the--- n i6sed7byC s; _or, a Y Cher matter. .. OR 5 -.-__-- Very tru�p -,-.yours-- 'Thomas yours;.Thomas F. Caffre Encls. _ j __cc Joe1-7B Bard.. Esg.. _ .(.w encls .) an.n rw�r_ --1 .,,ems ... _�--• fi _ .. i .v I�!J��V..RA�norr..sR;AAt+•-�5rr-tiya-ssc:_s.._r-•._�'a v. e..._-.•aa.�.+,9s++.a-=` �'��a4mra,.ev_-......._ _ _y _ -: _..... a...__: ,*:-:.crz^.r 3uTrsu-r_Y7.d.Yl.'%,Bygse$, .-�: °s7. ` 10 r.jr� I 4A i�•' � � Yom,_ WIN- saINM; � _ .. r.• 'fir .. ��. . r �_� �� ' was ': 'ter.• u •..fit. �,y, - ,. � r su � „;fin .ice k�9 `.F � _r . �,,, � -•: ,d L � r Pw�.,�'r�za"'�, y�,;t~�q"t.,fT'Y.i�.S �C,� ' � -j --. ,.e.•M ._. �..- r. �.Y'ti'�`.Fi. L � r El M LEONARD KOPELMAN DONALD G. PAIGE ELIZABETH A. LANE JOYCE FRANK JOHN W. GIORGIO BARBARA J. SAINT ANDRE JOEL B. BARD EVERETT J. M. PATRICK J. CO' 0 JOSEPH L. TE B.p WILLIAM HEWI I THERESA M. D NOVI NIP,! DEBORAH A. E Y 4J e KOPELMAN AND PAIGE, P. C. JEANNE S. MCKNIGHT JUDITH C. CUTLER ATTORNEYS AT LAW ANNE -MARIE M. HYLAND RICHARD BOWEN 31 ST. JAMES AVENUE CHERYL ANN PERRY DAVID J. DONESKI BOSTON, MASSACHUSETTS 02116-4102 _^ILANA M. QUIRK BRIAN W. RILEY BOSTON OFFICE JOHN J. KENNEY, JR-. (617) 556-0007 MARY L. GIORGIO FAX (617) 654-1735 KATHLEEN E. CONNOLLY MICHELE E. RANDAZZO NORTHAMPTON OFFICE PETER J. FEUERBACH (413) 585-8632 MARY JO HARRIS ANNE C. PREISIG WORCESTER OFFICE THOMAS W. MCENANEY (508) 752-0203 WILLIAM J. MURPHY MELISSA A. GRACE JONATHAN M. SILVERSTEIN ROAR® OF APPS October 31, 1996 CONFIDENTIAL - NOT A PUBLIC RECORD Mr. Robert Nicetta Building Commissioner North.Andover Town Hall 120 Main Street North Andover, MA 01845 Re: Charles Piscatelli, et al. v. D. Robert Nicetta, as he is the Building Commissioner of North Andover, et al. Land Court Misc. Case No. 224771 and Agnes M. Kmiec v. William J. Sullivan, et al. (Town of North Andover Zoning Board of Appeals) Essex Superior Court, C.A. No. 95-2207 Dear Mr. Nicetta: This is to confirm our telephone conversation on October 17, 1996 concerning the plaintiffs' proposed dismissals of both of the above cases. This is also to confirm that you have authorized us to execute the Stipulations of Dismissal on your behalf and on behalf of the Zoning Board of Appeals. Enclosed are copies of the Stipulation of Dismissal filed in each case. With the filing of these stipulations, both of these cases were dismissed and the litigation ended. As you know, both cases involve the property located at 1049 Turnpike Street and owned by Charles Piscatelli and William Barnett, as trustees. In the first case, Piscatelli v. Nicetta, the plaintiffs challenged your denial of a building permit for interior alterations. By agreement of the parties, the Court entered an order authorizing repairs to the heating system and removal of the chimney. In the second case, Kmiec v. North Andover ZBA, the abutter Agnes Kmiec appealed the ZBA's decision granting a special permit for exterior alterations at 1049 Turnpike Street. The owners of the structure subsequently decided not to perform the alterations and requested the ZBA's assent to withdraw their application. PRINTED ON RECYCLED PAPER KOPELMAN AND PAIGE, P.C. CONFIDENTIAL - NOT A PUBLIC RECORD Mr. Robert Nicetta Building Commissioner October 31, 1996 Page 2 Counsel for the plaintiffs, Catherine Savoie, has informed me, and you have confirmed, that the parties have resolved their disputes and no longer wish to pursue these cases. You have also advised me that all of the alterations to the structure have been performed to your satisfaction. We are pleased that these cases were resolved without the need and expense of further litigation. Very truly yours, Cheryl.Ann Perry / CAP/bjc Enc. CC: Board of Selectmen Town Manager Zoning Board of Appeals F:\DOCS\NANDOVER\0094\LTR\NICETTA.LET TEL 617-973-6100 FAX 617-367-2315 E-MAIL PBL@PBL.COM ERIK LUND, P.C. NOEL G. POSTFRNAK, P.C. RICHARD K BLANKSTEI,N, P.C. DONALD H. SIEGEL, P.C. DAVID M. SALTIEL IRAJ. DEM, CH ROSANNA SATTLER MICHAELJ. STONE GEORGE A. BERMAN RUSSELL K DUNNING LAURENCE FIELD GERALDJ. BILLOW JOHN EGAN LAWRENCE L. ATHAN, JR. ROBERT M. SCHLEIN CATHERINE). SAVOIE MICHAELJ. WOLFSON STEVEN S. BROADLEY CYNTHIA C. SMITH JEFFREY W. ARMSTRONG DUSTIN F. HECKER DAVID Y. LI JO -ANN M. MARZULLO ANDREW B. WHITE PAUL A Izzo VALERIE C. SAMUELS MICHAEL L. ANDRESINO SUSAN S. RIEDEL DAVID B. WESTEBBE DEBORAH DIVERDI CARLSON DAVID C. HARLOW SUSAN E. COHEN JOSEPH S. BERMAN RODNEY S. DOWELL JAMES M. LYLE JOSEPH P. CRIMMINS JULIE A. BROGAN ANTHONY L. GALVAGNA WILLIAMJ. DN1,WG DEIRDRE M. GIBLIN JEFFREY S. BRODY CRISTINA L. TURNBULL CHRISTOPHER MASTRANGELO THEODOREJ.PETRAKOS OF COUNSEL JOSEPH R. SCHMIDT STANLEY N. WALLFRSTEIN ROBERT O. RESNICK POSTERNAK, BLANKSTEIN & LUND, L.L.P. ATTORNEYS AT LAW 100 CHARLES RIVER PLAZA BOSTON, MASSACHUSETTS 02114-2723 CATHERINEP SAVOIE DIREgWIAL NUMBER 617-973-6274 October 18, 1996 Civil Clerk Essex Superior Court 34 Federal Street Salem, MA 01970 Re: Agnes M. Kmiec v. Town of North Andover, et al. Civil Action No. 95-2207 Dear Sir/Madam: Enclosed please find a Stipulation of Dismissal in connection with the above matter. Would you kindly docket and file the same. Thank you for your assistance in this matter. CJS/mfs Enclosure cc: Matthew A. Caffrey, Esq. Cheryl A. Banks, Esq. ID# 1751/8894-5 Very truly yours, Catherine J. Savoie COMMONWEALTH OF MASSACHUSETTS ESSEX, SUPERIOR COURT CIVIL ACTION NO. 95-2207 AGNES M. KMIEC, Plaintiff V. WILLIAM J. SULLIVAN, WALTER SOULE, RAYMOND VIVENZIO, ROBERT FORD, JOHN PALLONE, SCOTT KARPINSKI, JOSEPH F. FARIS, ELLEN MCINTYRE, in their capacity as Chairman and Members of the North Andover Zoning Board of Appeals, and THE TOWN OF NORTH ANDOVER, MASSACHUSETTS, and CHARLES PISCATELLI AND WILLIAM K. BARRETT, TRUSTEES OF TEN FORTY NINE REALTY TRUST, Defendants STIPULATION OF DISMISSAL Pursuant to Rule 41(a)(1)(ii) of the Massachusetts Rules of Civil Procedure, the parties to the above entitled action hereby stipulate that plaintiff's complaint against defendants is dismissed with prejudice and without costs to any party. AGNES KMIEC, By her attorney, 7nd�" - r-�Mftot5 Matthew A. C f ey, Es P.O. Box 1317 300 Essex Street Lawrence, MA 01842 CHARLES PISCATELLI AND WILLIAM K. BARRETT, TRUSTEES OF TEN FORTY NINE REALTY TRUST, By their attorney, b�rtherfhk J. Savoie, BBO # 544599 POSTER , BLANKSTEIN & LUND, L.L.P. 100 Charles River Plaza Boston, MA 02114 (508) 686-6151 (617) 973-6100 WILLIAM J. SULLIVAN, WALTER SOULE, RAYMOND VIVENZIO, ROBERT FORD, JOHN PALLONE, SCOTT KARPINSKI, JOSEPH F. FARIS, ELLEN MCINTYRE, in their capacity as Chairman and Members of the North Andover Zoning Board of Appeals, and THE TOWN OF NORTH ANDOVER, MASSACHUSETTS, By their attorney, (;F - "!!I& (-/r ery A. Banks, E Kopelman & Paige, P.C. Park Square Building, 7th Floor 31 St. James Avenue Boston, MA 02116 (617) 556-0007 Date: OGS, /91 1'7g4 ATF1A95F/8894-5 TEL 617-973-6100 FAX 617-367-2315 E-MAIL PBLQPBL.COM ERIK LUND, P.C. NOEL G. POSTERNAK, P.C. RICHARD K BLANKsTEIN, P.C. DONALD H. SIEGEL, P.C. DAVID M. SALTIEL iRAJ. DEITSCii ROSANNA SATTLER MICHAELJ. STONE GEORGE A. BERMAN RUSSELL K DUNNING LAURENCE FIELD GERALDJ. BILLOW JOHN EGAN LAWRENCE L. ATHAN, JR. ROBERT M. SCHLEL\ CATHERINE J. SAVOIE MICHAELJ. WOLFSON STEVEN S. BROADLEY CYNTHIA C. SMITH JEFFREY W. ARMSTRONG DUSTIN F. HECKER DAVID Y. Li JO -ANN M. MARZULLO ANDREW B. WHITE PAUL A. Izzo VALERIE C. SAMUELS MICHAEL L. ANDRESINO SUSAN S. RIEDEL DAVID B. WESTEBBE - DEBORAH DIVERDI CARLSON DAVID C. HARLOW SUSAN, E. COHEN JOSEPH S. BERMAN RODNEY S. DOWELL JAMES M. LYLE JOSEPH P. CRIMMINS JULIE A. BROGAN ANTHONY L. GALVAGNA WILLIAMJ. DLWMIIG DEIRDRE M. GIBLIN JEFFREY S. BRODY CRISTINA L. TURNBULL CHRISTOPHER MASTRA,NGELO THEODOREJ.PETRAKOS OF COUNSEL JOSEPH R. SCHMIDT STANLEY N. WALLERS"tEIN ROBERT O. RESNICK POSTERNAK, BLANKSTEIN & LUND, L.L.P. ATTORNEYS AT LAW 100 CHARLES RIVER PLAZA BOSTON, MASSACHUSETTS 02114-2 72 3 CATHERINE J: SAVOIE DIRgk LDIAL NUMBER 617-973-6274 October 18, 1996 Clerk Land Court Old Court House Room 408 Pemberton Square Boston, MA 02108 Re: Charles Piscatelli, et al. v. D. Robert Nicetta, et al. Land Court No. 224771 Dear Sir or Madam: Enclosed please find a Stipulation of Dismissal in connection with the above matter. Would you kindly docket and file the same. Thank you for your assistance in this matter. CJS/mfs enclosure cc: Cheryl A. Banks, Esq. Matthew A. Caffrey, Esq. ID# 1780/8894-5 Very truly yours, (`4-' Cather(e J. Savoie COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. i CHARLES PISCATELLI and WILLIAM K. BARRETT, TRUSTEES OF TEN FORTY NINE REALTY TRUST, Plaintiffs, ; V. ; D. ROBERT NICETTA, AS HE IS BUILDING COMMISSIONER AND.ZONING ENFORCEMENT OFFICER and THE TOWN OF NORTH ANDOVER, Defendants, and ) AGNES M. KMIEC, ) Intevenor ) LAND COURT CIVIL ACTION NO. 224771 STIPULATION OF DISMISSAL Pursuant to Rule 41(a)(1)(ii) of the Massachusetts Rules of Civil Procedure, the parties to the above entitled action hereby stipulate that plaintiff's complaint against defendants is hereby dismissed without prejudice and without costs to any party. D. ROBERT NICETTA, AS HE IS BUILDING COMMISSIONER AND ZONING ENFORCEMENT OFFICER and THE TOWN OF NORTH ANDOVER, MASSACHUSETTS, By their attorney, �I �! /a�7 • A. Banks, g 1 Kopelman & Paige, P.C. Park Square Building, 7th Floor 31 St. James Avenue Boston, MA 02116 (617) 556-0007 CHARLES PISCATELLI AND WILLIAM K. BARRETT, TRUSTEES OF TEN FORTY NINE REALTY TRUST, By their attorney, Catherin . Savoie, BBO # 544599 POSTERNA , BLANKSTEIN & LUND, L.L.P. 100 Charles River Plaza Boston, MA 02114 (617) 973-6100 AGNES M. KMIEC, By her attorney, WgXt� �Cd� Matthew A. Caf y, sq. P.O. Box 1317 300 Essex Street Lawrence, MA 01842 (508) 686-6151 Date. ATF1A964/8894-5 3. Received by Town Clerk: #Sj TOWN OF NORTH ANDOVER, MASSACHUSETTS APPLICATION BQA D OF APPEALS �R RELIEF FROM THE ZONING ORDI NANCE. . APPliCantte_ Addzess 70/c S'p+Lt s A„ Tel. No. YZ- < AA� owf� I' Application is hereby made: a) For a variance from the requirements of Secti Paragraph on C _--------___,._ and Table _ of the Zoning By'$ , For a special Permit under Section Of the Zoning Bylaws. —-- Paragraph_ c) As a Party Aggrieved, for review of a the Bu" dixlg Inspector or other authoriityision made by �' a) Premises affected are land numbered �p g _ and building(,) Y b) Premises affected are property with Irontage on North ( ) South ( ) East ( W the Street. est ( ) side of Street, and known as No. Street. c1 Premises affected are Premises affected have lareaanZoning oflstrict X anct the and frontage of L� feet. square feet Ownership: a) Name and address of OwnerOwnership,. if joint ownershiP .g ive all — V D / C S S7` Date of. Purchase ��y�. b) applicant i clot S— Previous Owner ?t—. �,Jowner, check his/her ierest in the premises; Prospective Purchaser Lessee Other Rev. 10/95 2. Letter of authorizatiors for VariaaCe/Special permit required. 4 . Size of proposed building: 1/0+- front; 3 5 �' fret deep; Height ')- Stories; -90 #' feet. a) Rpprcxiinate date of erection: b) occupancy or use of each floor: C) Type of construction: Woe, F M c_ 5• Has there been a previous appeal, under zo inq, on these premises? _ VT 5 If so, when? Ss� 6. Description of relief sought on this petition. Please explain in detail below. (If requesting a variance or special pernit lease fill out the attatched table.) The applicant is seaking authorization to make minor interior alterations to a nonconforming structure. The applicant is, therefore, seeking a special permit finding that the proposed minor interior alterations are not substantlally more detrimental-00—the neighborhood than the existing structure. The applicant is also appealing the Building Irspector's ed nial o a building permit authorizing the interior minor a t�tions. See Addendum, attached. ?. Deed recorded in the Registry of Deeds in Hook 4,66Page Land Court Certificate No. —� Book page The principal points upon which I base my application are as follows: (must be -5tated in detail) See attached addendum. DE$CRjpf70iY OF VILaTANCE RXQUESTED ZONING DISTRICT: 1, Eat Dimension Area . Street Frontage Front Setback Side Setbacks) Rear Setback Special Peraiit Request: Requited Setback or Arca Sem Exbtiug Setback Relief or Area Requested ADDENDUM O SpECI " SUBMITTED By1049 PLYC TION R TY TRU T 1049 Realty Trust is following minor i seeking authorization to make the nonconformingnterior alterations to the structure located at 1049 Turnpike Street; existing, 1. Remove or open wall to a hewkitcheo nette ; main2• EnlarQe the opening between the rec hall; eption are a and the 3. Install interior partitions second floor, to allow for a small storage structural), t�ctwcal) , on the g room and one small These minor alterations are application which the it Building the subject of a`buildin the grounds, Amon o g Inspector has previously deniedonSuperior Court 9' then things, that pending litigation -in Essex concerning the premises should be resglved the issuance of any further building attached) . This decision was a Pewits (see prior to Action No. 224771 Ppealed in the ' Exhibit "A, Of from denying, and the Build a Land Court, Civil the Permit on the g Inspector has been enjoined insofar as the applicant is re grounds of pending litigation Preu►ises, as oppo$ed to questing to make repairs to the alterations, b agreement of the decided y greement of the premises- As to the that the minor alterations weeldcant and the Town it was Board of Appeals for be presented to the zoning detrimental to a finding that they are not sub nonconforming the neighborhood than substantially more ung structure. the existing pre-existing The proposed alterations are any way affect any aspect of the a Purely Internal Structural xternal buildingthey d° not in logicallychanges. Therefore, there , and they are not or legdlly, that the can be no contention, to the neighborhood thanY are substantially more detrimental have no affect on the existing building. The changes simply they are strictly internalneigorhood one way or the other because ATf1637B/6894.5 EXHIBIT A FA KENNETH R MMONY Director crown of North Andover COMMUNYTYD - i OFF1cE OF EVELOPMENT AND SEnVYCE S 146 Main Street North Andover, Massachusetts 01845 (508) 688-9533 Mr. William Ten fort K• Barrett, SalTrustee 701r Y -Nine Realty Trust Salem Street North Andover, MA 01845 RE: Building Permit >. 1049 Turnpike street The Dear Mr. Barrett: December 26, 1995 The Building Permit structure at 1049 applicat'on as submitted water or sewer Turnpike Street indicates have been system, In checkingis AOC Connected that the approved ised that there is with the Board Of the town application Sewerage disposal neither potable Health, T for a Building system at the site, water nor an Additional, g Permit is DEAD Therefore, your Kmiec (Civil 'suit subject property is under Appeals and, as such 95-220) vs, the North litigation by Agnes M• the Civil Suit has � will not be issued Andover Zonin been decided, a Buildingg Board of Permit until Yours truly, D. Robert Nicetta, Building Commissioner DRN;gb & ZoningEnforcement Officer c/Kevin Mahoney, Interim Town Manager D OF APP • I:A1.S 688.95.11 J"';1'wriuo BUILDING 6$8.95.15 U. kul,� Ni,;�;uy CONSER VA'►1UN 688-9530 lLFAi:I'II 68$-9540 . �Gu+w 1 t1uwJ S -'d" Shirr PLANNING 688-95.15 AM 24' W ;D;K 3-0 o m— 6 0) _ �o z O to u, O -n mn DC • N x o m N 2-6 W3� n m i N mz n m v 2-6 w > z 1 to • > v N 1 m D r XO� a (y] -I T _ O F-�I Z 61 111 0 0 O ^: m o x no aLi A J mm 00 �' v '" O ° I z v X N T F1 8. 0- cmi rri z 2-6 3-0 o O 6 0) _ �o z O to u, O -n DC • N x o m N WIn W3� i N z n m UNFINISHED N V O � �n m 2- N nD • rr X o 7c V � 1 m- -i z 2=6 - UNFINISHED SORAGE r Z$A IST OF PARTIES OF INTEREST PAGE�_OF I� JBJECT PROHRTY Map 'PARCEL NAME !aCORE5S w _ B t TIERS app PAROL NAK"t {AODRSSS !o f-arc6a5 K�rL�y tcus7— I eou,jkv HvLLnt,) 14,9;lI n4 . p,j G oe0; ! o � L ! L �ol,N � �� o�'o Q ('�e��.L�-� S �' bDs7�3r✓ !�; l '� L__=k I CERTIFIED 87: DATE: Assessor's office Pare 7 of 8 LEONARD KOPELMAN DONALD G. PAIGE ELIZABETH A. LANE JOYCE FRANK JOHN W. GIORGIO BARBARA J. SAINT ANDRE JOEL B. BARD EVERETTJ. MARDER PATRICK J. COSTELLO JOSEPH L. TEHAN, JR. WILLIAM HEWIG III THERESA M. DOWDY DEBORAH A. ELIASON KOPELMAN AND PAIGE, P. C. ATTORNEYS AT LAW 101 ARCH STREET BOSTON, MASSACHUSETTS 02110-1137 BOSTON OFFICE (617) 951-0007 FAX 1617)951-2735 NORTHAMPTON OFFICE (413)585-8632 WORCESTER OFFICE (508)752-0203 January 22, 1996 CONFIDENTIAL - NOT A PUBLIC RECORD Mr. Robert Nicetta Building Commissioner North Andover Town Hall 120 Main Street North Andover, MA 01845 JEANNE S. MCKNIGHT JUDITH C,,CUTLER ANNE -MARIE M. HYLAND RICHARD BOWEN CHERYL ANN BANKS DAVID J. DONESKI SANDRA CHARTON ILANA M. QUIRK BRIAN W. RILEY JOHN J. KENNEY, JR. MARY L. GIORGIO KATHLEEN E. CONNOLLY JOHN G. GANNON KURT B. FLIEGAUF MICHELE E. RANDAZZO PETER J. FEUERBACH AARON M.TOFFLER ANNE C. PREISIG pA UFii de i JAN 2 -� BOARD OF AP_~,,; Re: Charles Piscatelli, et al. v. D. Robert Nicetta, as he is the Building Commissioner of North Andover, et al. Land Court Misc. Case No. 224771 Dear Mr. Nicetta: This is to inform you that on January 17, 1996, I appeared on your behalf at the Land Court for a hearing on the plaintiffs' motion for injunctive relief. The plaintiffs challenged your decision dated December 26, 1995 denying one building permit application to install a new heating system and another building permit application to remove the chimney and make certain interior alterations to the structure located at 1049 Turnpike Street. The primary grounds for your denial of the building permits was the pending litigation of Kmiec v. North Andover Zoning Board of Appeals, Essex Superior Court, C.A. No. 95-2207, an abutters' appeal challenging the ZBA's grant of a special permit to alter the nonconforming structure at 1049 Turnpike Street. At the hearing, the Land Court (Kilborn, J.) indicated that the pending litigation was not a valid basis for denying a building permit to remove the chimney, patch -up the resulting hole in the roof and install a new heating system. At the hearing, counsel for the plaintiffs represented that the plaintiffs would submit the remaining interior alterations for review by the ZBA for a finding of whether those alterations will render the structure substantially more detrimental to the neighborhood than the existing structure. Accordingly, Judge Kilborn instructed the parties to prepare an order incorporating PRINTED ON RECYCLED PAPER KoPELMAN AND PAIGE, P.C. CONFIDENTIAL - NOT A PUBLIC RECORD Mr. Robert Nicetta Building Commissioner North Andover Town Hall January 22, 1996 Page 2 these two matters for his signature. Enclosed is the proposed order that has been prepared and submitted to the Court. As soon as the Court executes and enters the order, I will provide you with a fully executed copy. If you have any questions concerning the issuance of a building permit for the chimney work and installation of a heating system, please fee free to call me. Ver truly yours, tru " Cheryl Ann Banks CAB/bjc Enc. cc: Acting Town Manager Zoning Board of Appeals COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. LAND COURT CIVIL ACTION NO. 224771 CHARLES PISCATELLI and WILLIAM K. BARRETT, TRUSTEES OF TEN FORTY NINE REALTY TRUST, Plaintiffs V. D. ROBERT NICETTA, AS HE IS BUILDING COMMISSIONER AND ZONING ENFORCEMENT.OFFICER FOR THE TOWN OF NORTH ANDOVER, AND THE TOWN OF NORTH ANDOVER, Defendants ORDER ON MOTION FOR PRELIMINARY INJUNCTION This matter came on to be heard and, by agreement of the parties, it is hereby ordered and adjudged: 1. The defendant, D. Robert Nicetta, as he is building commissioner and zoning enforcement officer for the Town of North Andover, is enjoined from refusing to issue a building permit authorizing installation of a new heating system, completion of the removal of the existing chimney and patching the hole in the roof at 1049 Turnpike Street in North Andover solely on the grounds of the pending lawsuit of Kmiec, et al. v. North Andover Zoning Board of Appeals, et al., Essex Superior Court Civil Action No. 95-2207; 2. Replacement of the heating system, completion of the removal of the chimney and patching the hole in the roof are repairs which are not governed by the North Andover Zoning By-law, nor by Chapter 40A, Section 6; 14 3. To the extent that the plaintiffs have requested authorization to make other interior alterations to the premises, the parties have agreed that these interior alterations will be presented to the Zoning Board of Appeals for a finding that the alterations are not substantially more detrimental to the neighborhood than the existing building. The plaintiffs have agreed to apply to the Zoning Board of Appeals for this finding without waiving their rights in this lawsuit, or in any other lawsuit, to argue that the North Andover Zoning By-law does not require such a finding in the first instance. By the Court j Kilborn, J.). Attest: Dated: January , 1996 ATF163A3/8894-5 Charles W. Trombly Recorder 12-27-1995 1:51PM FROM COLONIAL VILLAGE 508 682 2397 Town of North Andover . OFFICE OF COMMUNITY DEVELOPMENT AND SERVICES 146 Main Street ICHNNEM R. MAHONY North Andover, Massachusetts 01845 Dinmr (508) 688-9533 December 26, 1995 Mr. William K. Barrett, Trustee Ten Forty -Nine Realty Trust 701C Salem Street North Andover, MA 01845 RE: Building Permit Application 1049 Turnpike Street Dear Mr. Barrett: P. 1 The Building Permit application as submitted indicates that the structure at 1049 Turnpike Street is not connected to the town water or sewer system. In checking with the Board of _Health, I have beenadvised-- .that where is neither potable water nor an-) _ approve d sewerage disposal_systemfat the site. -Therefore, your' application for a Building Permit is TDENIED:� Additionally, the subject property is under litigation by Agnes M. Kmiec (Civil Suit No. 95-220) vs. the North Andover Zoning Board of Appeals and, as such, will, not be issued a Building Permit until the Civil Suit has been decided. Yours truly, D. Robert Nicetta, Building Commissioner & Zoning Enforcement Officer N- _ c/Kevin Mahoney, interim Town Manager BOARD OF APPEALS 6M9541 BUIIDING 688A545 CONSERVATION 688A530 HEAUM 68&9540 I..1:.1P.—;. n Vr&Wd#W_k_.W . - V;A.A:7.. ,A SeedsStur PLANK N0'688-9535 THE MASSACHUSETTS STATE BUILDING CODE SECTION 112.0 RIGHT OF ENTRY 112.1 General: In the discharge of his duties, the building official shall have the authority to enter at any reasonable hour any building, structure or premises in the municipality to enforce the provisions of this code. If any owner, occupant, or other person refuses, impedes, inhibits, interferes with, restricts, or obstructs entry and free access to every part of the struc�ure, operation or premises where inspection authorized by this code is sought, the building official, or state inspector may: 1. seek in a court of competent jurisdiction a search warrant so as to ap rise the owner, occupant or other person concerning the nature of the inspe tion and justification for it and may seek the assistance of police authorities in presenting said warrant; and/or 2. revoke or suspend any permit, license, certificate or other permission regulated under this code where inspection of the structures, operation or premises is sought to determine compliance with this code. 112.2 Office badge: The BBRS may adopt a badge of office for building offi ials which shall be displayed for the purpose of identification. 112.3 Jurisdictional cooperation: The assistance and cooperation of police, i; and health departments and all other officials shall be available to the buildi official as required in the performance of his duties. SECTION 113.0 APPLICATION FOR PERMIT 113.1 When permit is required: It shall be unlawful to construct, reconst uct, alter, repair, remove or demolish a structure; or to change the use or occupancy of a building or structure; or to install or alter any equipment for which provisi n is made or the installation of which is regulated by this code without first filing a written application with the building official and obtaining the required permit therefor. Exception: 1. Ordinary repairs as defined in Section 201.0. 2 Greenhouses covered exclusively with plastic fi accordance with Chapter 671 of the Acts of 19821. 113.2 Form of application: The application for a permit shall be submitt Id in such form as the building official may prescribe and shall be accompanied b the required fee as prescribed in Section 118.0. 1-14 780 CMR - Fifth Edition ADMINISTRATION AND ENFORCEMENT 11 �.10 Time limitation of application: An application for a permit for any proposed work shall be deemed to have been abandoned six (6) months after date of filing, unless such application has been diligently prosecuted or a permit has been .issued; except that for reasonable cause the building official may grant one or more extensions of time for additional periods not exceeding ninety (90) days each. . SECTION 114.0 PERMITS 114.1 Action on application: The building commissioner or inspector of buildings she'll examine or cause to be examined all applications for permits and amendments th:eto within thirty (30) days after filing. If the application or the plans do not conform to the requirements of Section 113.0 or other related sections of this code or bf pertinent laws within his direct jurisdiction, he shall reject such application in writing citing the specific sections of this code or pertinent law. If he is satisfied that the proposed work conforms to the requirements of this code and all pertinent lav applicable thereto, he shall issue a permit. 114. 1.1 Railroad Right -of -Way: No permit to build a structure of any kind on land formerly used as a railroad right-of-way or any property appurtenant thereto formerly used by any railroad company in the state shall be issued without first obtaining, after public hearing, the consent in writing to the issuance of such permit from the Secretary of the Executive Office of Transportation and Construction, all in accordance with MGL C40, S54A. 11.1.2 Water Supply: 'No permit'shall be:issued for;the construction "of a building or tructure which would necessitate -the useof water therein, unless a supply of wader is available therefor, either from a .water system operated by a city, town or dis rict, or from a well located on the land where the building or structure is to be constructed, or from a water corporation or company, as required by MGL C40, S54. 11 1.1.3 Debris: As a condition of issuing a permit for the demolition, renovation, rehabilitation or other alteration of a building or structure, MGL C40, S54 requires tha the debris resulting therefrom shall be disposed of in a properly licensed solid wa to disposal facility as defined by MGL C111, S150A. Signature of the permit applicant, date and number of the building permit to be issued shall be indicated on a form provided by the building department, and attached to the office copy of the bonding permit retained by the building department. In the case of a large project where the name and location of the disposal facility may be unknown at the time of thel building permit application, an affidavit provided by the building department containing the number of the building permit, date, within two months, when notification will be submitted to the building official of the name and location of the waste disposal facility, signature and address of the permit applicant and date shall be acceptable. 780 CMR - Fifth Edition 1-17 J I. E MASSACHUSETTS STATE BUILDING CODE R mote station system: An electric alarm system capable of automatically notifying th public or private fire department, or other approved constantly attended to ation, when the system is activated. 110air: The reconstruction or renewal of any part of an existing building for the purpose of its maintenance. rRepairs;-ordinary: Any maintenance which does not affect structure, egress, fire _. protection systems; fire ratings, energy conservation provisions; plumlbing, sanitary, } ga ; tlectr►cal� or other, uti ities`sA building permit is not required for ordinary rel airs. j Required: Shall be construed to be mandatory by provisions of this code. Residential unit: a) in R-2 multi -family use group, a dwelling unit; b) in R-2 dormitory use group, a room or group of rooms occupied as a single unit; and c) in RJ use group, a room or group of rooms occupied as a single unit. Riser: The vertical supply pipes in a sprinkler system or standpipe system. Roof: The roof slab or deck with its supporting members, not including vertical su6orts. covering: The covering applied to the roof for weather resistance, istance or appearance. Roof structure: An enclosed structure on or above the roof of any part of a bu}lding. Rdom air conditioner: An encased assembly designed as a unit for mounting in a wi dow or through a wall, or as a console. It is designed primarily to provide free de ivory of conditioned air to an enclosed space, room or zone. It includes a pritfle soiree of refrigeration for cooling and dehumidification and means for circulating an, cleaning air, and may also include means for ventilating and heating. Room Area (A,): The area of a room or space determined from the inside face of the walls or partitions measured at work plane height. Rubble Coursed rubble: Masonry composed of roughly shaped stones fitting approximately on level beds and well bonded. Random rubble: Masonry composed of roughly shaped stones laid without i regularity of coursing but well bonded and fitted together to form well defined joints. 2-26 780 CIVIR - Fifth Edition 2.52 No Cut Zone (1989/32) An area which is left in its natural condition, which shall not be disturbed by any means which includes but not limited to the cutting of trees or understory. X2_.53 Non -Conforming .Use t A building, structure or_use legally existing and/or used at the time of adoption of this Bylaw, or any amendment thereto, and which does not conform with the use regulations of the district in which located. 2.5,1 Office, Business A primary use consisting of office activities of any type, including business and financial office activities (including banks and financial institutions) and professional office activities. 2.55 Office, Professional A primary use consisting of office activities by a doctor, dentist, architect, lawyer, engineer or other professional person or persons. 2.56 Parking Area, Private An open area for the same uses as a private parking garage. 2.57 Parking Garage,,.Private A structure use for the parking of automobiles and available to employees, clients or customers whether for a fee or free. 2.58 Parking Garage, Public Any parking garage, other than a private parking garage, which is open to the public and used for.the storage of motor vehicles. 2.59 Personal Service Establishment An establishment providing personal services to the public such as shoe repair, barbering dry cleaning, etc. 2.60 Place of Worship' A church, temple, synagogue, mosque or other similar place of worship, including parish house, rectory, or convent. 2.7 SECTION 9 NON -CONFORMING USES 9.1 Non -Conforming Uses Any non -conforming building, structure, or use as defined herein, which lawfully existed at the time of passage of the applicable provision of this or any prior by Law or any amendment thereto may be continued subject to the provisions of this Bylaw. Any lawfully non -conforming building or structure and any lawfully non -conforming use of building or land may be continued in the same kind and manner and to the same extent as at the time it became lawfully non -conforming, but such building or use shall not at any time be changed, extended or enlarged except for a purpose permitted in the zoning district in which such building or use is situated, or except as may be permitted by a Special Permit or otherwise by the North Andover Board of Appeals. Pre-existing non -conforming structures or uses, however, may be extended or altered, provided that no such extension or alteration shall be permitted unless there is a fining by the Board of Appeals that such change, extension, or alteration shall not be substantially more detrimental than the existing non- conforming use to the neighborhood. 9.2 Alteration or Extension A use or structure housing a use, which does not conform to the regulations.of this Bylaw but which did conform to all applicable regulations when initially established shall not be changed, extended or enlarged except in accordance with the following provisions: 1. Such change shall be approved by a Special Permit or otherwise by the Board of Appeals. 2. Such change shall be permitted only upon the same lot occupied by the non -conforming use on the date that it became non -conforming. 3. anyincrease in volume?_ area,,_ or extent of the non - conform ng use 4shall not exceed__,an aggregate of more than twenty five percent1,(25°sE) of the original use. 4. o change shall be`permitted which tends to- lengthen the l economic life)of the non -conforming longer than a period reasonable for the amortization of the initial investment. i 9.1 f f a 9.3 Building After Catastrophe Any non -conforming building or structure destroyed or damaged by fire, flood, lighting, wind or otherwise to the extent of sixty-five percent (65%) or more of its reproduction cost at the time of such damage shall not be rebuilt, repaired, reconstructed nor altered except for a purpose permitted in that zoning district in which such building.is located, or except as may be permitted by a Special Permit or otherwise by the Board of Appeals acting under G.L.''Chapter`40A. 4 ` Abandonment -- - - A If any lawfully non -conforming building or use of a building or land be at any time d scontinued, n r a period_ of tw ars or more, or if such use or Vuilding be changed to one conforming with the North Andover zoning Bylaw in the district in which it is located, it shall thereafter continue to conform. 9.2 RECEIVED JOYCE BRApSHAW NORTH ANDOVER P.eceived by Town Clerk: JAN j9 .2 48 TOWN OF NORTH ANDOVER, MASSACHUSETTS BOARD OF APPEALS APPLICATION FOR RELIEF FROM THE ZONING ORDINANCE AppliCilnt'te y- /1/,n� V Address 70/c S44.+i 6f' Tel. No. J I. Application is hereby made: a) For a variance from the requirements of Section Paragraph and Table of the Zoning Bylaws. 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 X and building(s) numbered l0�9 yyyn,�� S��pP-f— Street. b) Premises affected are property with frontage on the North ( ) South ( ) Bast ( ) west ( ) side of Street. Street, and known as No. Street. c) Premises affected are in Zoning District L J.., anct the premises affected have an area of 32,/ _ square feet and frontage of 1!/S- feet. 3. Ownership: a) Name and address of owner (if joint ownership, give all names) 7a /C Sm 57� /U i51a/Q. Date of, Purchasef- Previous OwnerL[� b) 1. If applicant i not owner, check his/her interest in the premises: Prospective Purchaser Lessee Other Rev. 10/95 2. Letter of authorization for Varianct/Special Permit required. 4 . Size of proposed building: � 0 4 _ front; 3 �1 t' feet deep: Height eZ stories: 90"- feet. a) Apprcxijnate date of erection: ( g a,'7 b) Occupancy or use of each floor: C) Type of construction: ( 06,Q p'2grne_ 5. Has there been a previous appeal, under zo ing, on these premises? _ eS If so, when? 6. Description of relief sought on this petition. Please explain in detail below. (If requesting a variance or special permit please fill out the attatched table.) The applicant is seeking authorization to make minor interior alterations to a nonconforming structure. The applicant is, therefore, seeking a special permit finding that the proposed minor interior alterations are not substantially more detrimental to the neighborhood than the existing structure. The applicant is also appealing the building Inspector's denial oT a building permit authorizing the interior minor a aerations. See Addendum, attached. 7. Deed recorded in the Registry of Deeds in Book 664 Page Land Court Certificate No. Book Page The principal points upon which I base my application are as follows: (must be stated in detail) See attached addendum. I agree to pay the filing fee, advertising in newspaper, and incidental expenses`' WILL NOT BE r Tib$ "Lic HEARING. LY, ll � �'� �C a ire , t2vs fz Name of Applicant(s) (Print) i.gnatu a of Applicant(s) Rev. 10/95 DESCR�Pl�ON OF VARIANCE PEZ2UESTED ZONING DISTRICT: Jr— J— Required Setback Existing Setback Relief or Arca or Area Requested Lot Dimension Area Street frontage Front Setback Side Setbacks) Rear Setback Special Permit Request:�,� Se �(/v ADDENDUM .O SpECIAI, pggM AppLICATION SITBMI-rl•�ll By 1049 REALTY TRUST 1049 Realty Trust is seeking authorization to make the following minor interior alterations to the pre - nonconforming structure located at 1049 Turnpike Street existing, 1. Remove or open wall to a new kitchenette; 2_ Enlarge the opening between the reception area and the main hall; second • floorst to allow interior forpartitions (none structural) , on the Office. age room and one small These minor alterations are the subject of a building permit application which the Building Inspector has previously denied, on the grounds, among other things, that pending litigation in Essex Superior Court concerning the premises should be resolved prior to the issuance of any further building attached). This decision was $ permits (see, Exhibit "A,�� Action No. 224771, and the Bdildil ngInspector hased in thedbeenre, civil njoined from denying the permit on the is requestinggrounds of pending litigation insofar as the applicant premises, as opposed to alterat ons on the make repairs to the alterations, by agreement of the applicant andmthes Town it as decided that the minor alterations would be presented to the zoning Board of Appeals for a finding that they are not substantially more detrimental to the neighborhood than the existing pre-existing nonconforming structure. The proposed alterations are purely internal , they in any way affect any aspect of the external building and heyoaretnot structural changes. Therefore, there can logically or legallbe no contention, y, that they are substantially more detrimental to the neighborhood than the existing building. The changes simply have no affect on the neighborhood one way or the other because they are strictly internal. ATf963761$M.5 EXHIBIT A Town of North Andover OFFICE OF t ?.HOHT- o`,'oO ° '° 6COMMUNITY DEVELOPMENT ANDSERVICES r,'g p_s� � KENNETH R MAHONY 146 Main Street Director North Andover, Massachusetts 01845 (508) 688-9533 December 26, 1995 Mr. William K. Barrett, Trustee Ten rorty -Nine Realty Trust 7010 Salem Street North Andover, MA 01845 RE: Building Permit Application 1049 Turnpike Street Dear Mr. Barrett: The Building Permit application as submitted indicates that the structure at 1049 Turnpike Street is not connected to the town water or sewer system. In checking with the Board of Health, I have been advised that there is neither potable water nor an approved sewerage disposal system at the site. Therefore, application for a Building Permit is DENIED. your Additionally, the subject property is under litigation by Agnes M. Kmiec (Civil Suit No. 95-220) vs, the North Andover Zoning Board of Appeals and, as such, will not be issued'a Building Permit until the Civil Suit has been decided. Yours truly, D. Robert Nicetta, Building Commissioner & Zoning Enforcement Officer DRN:gb c/Kevin Mahoney, Interim Town Manager � I30AR8 OF APPEALS 688-9541' 13UILDING 688-9545 CONSERVATION 688-9530 Julie Yruriuo HEALTH 688-9540 D. Robot Ni"uu h icluwl now"d 1+u,clr4 Starr PLANNING 688.1335 IST OF PARTIES OF INTEREST PAGE—)—OF- JBIECT PROPERTY /in aP WAPCEL NAME Z$A BC TTERS 14AP PAROL NAA",E {AODR�SS Fbp.%�s KesrL�y iGufi%`' I �/ (oo,Jf2y 4DLLato, 144►';11 Icy L .� y1Nk<..� 1'cc,ln,F)L 01o4,o; �Nk►'/ v �" _ as 7aN , ✓%'/� - c o � L I L .7'o6,N �� .�.1n�1 ty�:_ �c o ee.kc._l�_�_ s d-. _ F3es fay✓ _L�A. / p -� I �-q.,v�.��✓1. km L / o o I rvrt�✓v kc St. N. A�v�v?lz /rI� CERTIFIED S7: AsDATE: sessor`s Office Pare 7 of 8 Post -it® Fax Note 7671 Date -�, pages To From C Co./Dept, r NJ.0 J to. Phone # Ph #600v� f� 'F 1 Fax # 1J ' a V QEvi v - JOYCE E? t.CsiAw TOWN C1E K NORTH ANDOVER iiti 1 .2 155 TOWN OF NORTH ANDOVER, XASSACHUSETTS BOARD OF APPEALS APPLIC TION FOR RELIEF FROX -HE-ZONING ORDINANCE Te/t/2l Nye. �� L T �� vs - Appli.can r Address Ge. A _ Tel. No., o�� 6rZ -,Z3Z0 1• Application is hereby made: a) For a variance from the requirements of Section ` c% Paragraph„iand Table _a- of the Zoning Bylaws. b) For a special Permit under Section 0i Paragraph 91_. xo 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 buildings) X numbered 16 4 9 t u_ Al i ,tQ Street. b) Premises affected are property with frontage on the.., North ( ) South ( ) East ( ) West ( ) side of Street. Street, and known as No. Street. C) Premises affected are in Zoning District _�, and the premises affected have an area of 3,7 agy square feet and frontage of 1J-/. S feet. 3. Ownership: a) Name and address of owner (if joint ownership, give all names) : Iv Nix' e_ ;!_ A,4 . Date of Purchase S-- Previous Owner-ALo.J b) 1. If applicant is not owner, check his/her interest in the premises: Prospective Purchaser Lessee Other 2. Letter of authorization for Variance/Special Permit required. 4. Size of proposed building:_ front; .3 8 feet deep; Height 2. stories; C.• feet. a) Approximate date of erection: 19 �7 b) Occupancy or use of each floor: as �cQpa¢rr c) Type of construction: W040 &9- F¢,g„i`. 5. .',:Has there been a previous appeal, under zoning, on these premises? un1 K,jo,y.✓ If so, when? 6. Description of relief sought on this petition. Please explain in detail below. 11f requesting -a variance or spec_ ial_permit Please fill out the attatched table.) V co 6 v �i�✓c s ,vA -odQ_ RNGC RdL�ll/N4 rad �! F� SLodn�� 7. Deed recorded in the Registry of Deeds in Book � cc Page Land Court. Certificate No. Book Page The principal points upon which I base my application are as follows: (must be stated, in detail) "`` AA* nor iia j; L.A-,vdL oA 1s "VIZ I agree to pay the filing fee, advertising in newspaper, and incidental expenses* Signatu FM e'of Petitioner(s) DESCRIPTION OF VARIANCE REQUESTED ZONING DISTRICT: Required Setback or Area Existing Setback Relief or Area Requested Lot Dimension. �d 0 0 3 01� � e7 41 Area � "/- Street Frontage is -'o Front Setback a 15- ' 95- ' Side Setback(s) Rear Setback jv a70�- Special Permit Request: �Pc ��.9-L P.¢4M ",- lle,,f ac.O-.c V VX4, - SSC*40 No VAS- AtA ` �Acd 0 LIST OF PARTIES OF INTEREST SU BJ ECT PROPERTY MAP IPARCEL ILOT INAME ADDRESS ABUTTERS MAP IPARCEL JUOT INAME JADIDRESS /o 7 v 7 l U 7 L c �' I G A"J sS �'� �Gx TwsT 9✓C� c c J�IN f�.7l .YL // Lvun7,Z lCla,, fh'�L�iY /yam, sf. v3 �s�,✓ /n clz/v i �v .ST ✓y 711 Ivan i Ten Forty Nine Realty Tr 1049 Turnpike St. No. Andover, Me. 01E F Mr. Walter Soule, Vice Chairman North Andover Board of Appeals 146 Main St. Town of No. Andover, Ma. 01845 RE: Public Hearing of Feb 13, 1996 Dear Mr. Soule, My name is William Barrett. I was before your board on February 13, 1996 as an applicant in my capacity as trustee of 1049 Realty Trust. I take great offense to your characterization that I am, or I have been, dishonest in my dealings with your board on a previous filing. Moreover, I am shocked that you would make such a reckless charge to the public in an open forum. Have you ever heard of an honest mistake? How could you so easily take the position that errors found in our initial plan of the building were an attempt on our part to deceive the board? The initial set of plans were drafted by a non- professional. The measurements for those plans were taken from an assessors plan found at town hall. An assumption was made that the first floor area shown on these plans were substantially correct. I admit, I was negligent in not instructing the drafter of these plans to verify all measurements on site. However, this does not in any way, shape or form impeach my honesty in this filing. If this application had not been opposed the slight differences between the initial plan and the subsequent certified plan would have been irrelevant. I assure you I will not take these applications so lightly in the future. The current application before you includes two sets of plans. The set attached to the application was intended to suffice while I waited for Mr. Nicetta, the towns zoning enforcement officer, to respond to the following two questions asked through Julie Parrini, Mr. Nicetta's assistant: 1) Would a site plan be required with this application, since there in no exterior work being done? 2) Would additional floor plans be required since the previous filing had provided certified floor plans? One week later I called Julie to see if Mr Nicetta had responded. Julie explained he had not and she was no longer handling these matters for the town. I then decided to see Mr. Nicetta myself. I did this the following day. Mr. Nicetta explained he would be on vacation for this meeting, but he suggested I provide as much detail as I could. I did this through the second set of floor plans and additional copies of the original site plan. You stated on Tuesday evening that you cannot understand how the applicants before your board can continue to file insufficient plans. Yet, one of your own board members this night asked why my plans were not stamped by an architect. This is not a requirement of this board as I pointed out at the hearing. Lastly, I must take issue with your handling of our application before your board on Tuesday night. The board is charged with determining that the request for relief in our filing is or is not more detrimental to the surrounding properties. Yet you have continued the public hearing because you wanted Mr. Nicetta's input on this matter. Mr. Nicetta had ample time to act on this matter had he decided to do so. All parties involved were aware that Mr. Nicetta would be on vacation for this meeting. However, the meeting was scheduled anyway and to my knowledge no request for additional information was conveyed to Mr. Nicetta. I believe your board had the information it needed to act on this matter on the evening in question and chose not to do so. I cannot imagine why you would chose to continue to delay your finding. The board had previously determined that my exterior improvements to the property,(ie: roof dormer and exterior staircase), would not be more detrimental to the neighborhood than the existing building. How can the board not make the same finding to these minor, strictly interior alterations that will enable the property to be used in a manner expressly permitted under your bylaw? In this case no decision was worse than a negative decision; and this further delay only supports Mr. Kmiec's harassment and frivolous attempts to block my absolute right to improve and occupy this property for office use. Mr. Soule, I deal with the boards, agents, inspectors, and employees of this town on a regular basis. I urge you to try to verify your suspicions of my dishonesty with any of these people. I believe you will find I am indeed quite the opposite. I believe they will verify I have always handled myself in an honest and forthright manner. This is not to say I have not made mistakes, but never dishonest. I insist that you retract your erroneous statement in the same manner in which you stated it; that is, in an open forum and at the earliest opportunity. Sincerely, By William K. Barrett, Trustee For Ten Forty Nine Realty Trust Telephone # 508-682-2320 cc:Robert Nicetta, Building Inspector James M. Lyle, Esquire Kevin Mahoney, Interim Town Manager �d cc77 54onuo J. Callrey -Alornecy of r- aw, P. (f ✓� r} ng1r.Y P 0. A., 1317 I /auira G. C a��re� �inii�x 300 M� eex. �[neefr eCawrence, I Y/a 01842 /Y(aIlL.-4. a//rey _ _ _ _ 508-686-6151 _ -- - - �j // �ax 508-683-8188 _ a& acLnilfed in 91-A - - - _ - - ._ _ r - - - _ -_ _ -.. -. - :..'_' :r� - _ .._.. _... ... -- rs.:r_.r,'Y'as.--"' �3nc.: ^r > _=r�-•'.�rT^-„. ,...-.�--.--^^.•-rc �".5��--_ .. - :suc_-ra.- _.,arasRw-r�senwRv �+r--fir- -Scams .z w.a.+..- March 1, 19-96- - - - -:—R-obert,� cetta Bu ldT g Inspector Town of North Andover 146 Main Street An- ,.�-=:l�pp-li at- gnr f --Building Permit :tet fly- - rrnp� ke S_ .reed - ..+.. - - s-ycU-,- crraw�;-=trs'=firm represents-A-FZguesec _ - _Turrpce Streetortitover,- Massaehusetss"`a agaa s `moi 3 iam K - -arret-t -and Charles P�sca e u� e f -. _ F -+ 104-f2ealty` rus 'why c i s ..the owner of North Andover, Massachusetts (the "Property"). The�tjgurpo ae- t %s -I t t e r is to bring =yg ansa -=we 1 l ra q rt -� _• - �^ onn Board _:of; A eat s, ii to date with r ardoseveral on agoing=zoning=vz-o a -frons •that -we-•recent ly di�scr0ve-re Pxoperty-,.�. Wzt�..isoux.,position that the .owners,f 70,4:9._u-rnp-ike_ -:_ -._-- _ _ - - - S'treet�have performed"== end continue to-,gerfortn=``work---at-"tie mit:e--wt�hQ��=obt�ar��.=�c��essary --building:ape-rm�.��c••ce�=; 2 t= ��=. 9.K„and%or_special ermi`5:�`"The performance of this. �orkithorrth appropriate permits is unlawful, and should be stopped immediately. -Enclosed are representative photos which show the - extent of the work that has been performed to date: e^-�"c=tO_e�.r.,c ,a.. __ :...� _ ".r. �.._..... n.�;.-x- Ri:it�`+��•�'�3 A' .SHEET N. 1_ si +tY 5w 3..tascr.L-."sscay.�ivr•.L^� '-- t:.�- - yam-.rs• .'.•a..�xr�^•z�xxs x--.- ........_ . - _ - s s:L �`^...AWs#5k�<3a: YaK,:rSa�"as^i �.k . _.-. Tk�e-wo�-phatascar�tk�s- : sheet were .taken _ . the-�-house:-en h ----;Property:. The< blackfi.:ar� d-:�wh_Ite:•=.p} of vta8 wug,;z; 4' taken on November_ 1995; the color photo was taken on 7 a ..� From.-.these._pY otos it is clear tha--t a a zndow�_has,. been -- ---'- replaced 4ith moor ---on the second Boor, -and a new -windows added next -to that door. Further,ya window has been removed on the first floor. We have found no building permits - authorizing this work by the owners. MP - A a96 ------- - Jhornad l 1,,,,., Att ..y at oP., PC D. Robert Nicetta, March 1, 1996 Page -2- SHEET NO. 2 Building Inspector --- The two photos on this sheet were taken from the east side -- - __ of the house. The black and white photo was taken on November 19, 1995; the color photo was taken on February 21'' - - 1996 ,...... ou..,can,._see.�that:....the ._slo e of .the From .these ,photos "y p over the door has been altered. In addition, the single -window which_ appeared in the -.photo .has been replaced__--_, _earlier _ _ r-.- --with, two windows Alain no buijLding ypermits were ;issued - -. - that authorized _ this.--wo.rk by 7the--:-owners . SHEETS NO. 3 All of the photos on -these two sheets -were taken on February = 21, 1996, from the first floor of the north side of -_the f From these photos, it is clear that the owners have ristallecl a new .kitchenette, and `erected" a wall that now _.. _._._.__ _. _ _ . _ separates the .k-tcheiett-e�from a.".new""'bathroom: As`=you.:`know-,_ .�...._a.__.. . -` the owners-have`applied-- or- a-=peimit'-to "install -=a _ - `proposal =from --the- Zoning -Board- ofAppeals . r e�M: �T: MP+>.•.++e4 '-�._... ..... .... .... ...._�.. .-+-v.air.+�-:_r...�..nn'.sr.'n-s.�'.�i++.raga_r-.a.vm.wtl..+e�.^..+A.wwesnw^4+ow.rixr..+.^,+ra.v+-_....x--m...._uw..—.._ _. ...f-:_=•rc-�++._,.....-�rns...,..—y__.m _The -.-photos - on. ythis.-sheet-.were -taken-.on . February .2 1, 1996.._..-, The _top photo. was taken from the ,first floor of the north ----side.,. f-thehous.e... ,, r.eY are.,three - new _ electrical .,out.le.ts ---- - v.isible.--in_4_the_bottomleft,--- portion_ of_ the photo., ;and.-a_=new - - .. electrical --wire ..:hangs--from-the...ceiling.; The --bottom=photo`vas'wtaken-- in�he'-basement, of the ---- ---- --Both and visible. her -e- - - --- _ the - — - In-.add_ition- t-he--new-i-1-umb ng--ser-price 4 the -cast- iron ipe) his--a-lso.avisible-n6;.-t=h�.s-phot-o �... ..�.� No building permits:have.-=been:_..bb`tained to.perform any. -.of. this work. Based on the foregoing.evidence,-it is our position that the rs of the Property are..knowingly--_performing renovations and JL..j J. (,.a j/LY, Att.,..Y at oCaw, P. C D. Robert Nicetta, Building Inspector March 1, 1996 Page -3- structural work at the site without obtaining the necessary permits or variances. At the hearing on February 13, 1996, the owners of-the-- Property f-the_Property came before the Zoning Board of Appeals as a "party -- -- '=aggrieved}b-a decisofl of the Building Mnspe�otor ='hBuidiyg Ins ector--had denied---the--owners' request for - _ - becausehere=wasrio"otable, water nor ani a redwe=tea�`� system" at the Property. The owners also applied for a special permit pursuant to Section 9, paragraph 1 of the Zoning Bylaws to Tperfor-�rt�i� l efa ons to the interior off he --p Board�cot� ruedw �Yeetaring :without a finding __—�n-higfi �of"`'the�"w%Irful violation �`� r� =have:ocirred�Ttiase. it is our �_BuildingPermits�Specsal Permits, var -au hori zaai�ns _shouad'�15 ssued to the violations ar Please let me know if you have any questions-about-the- --- uestions- about -the° Y�ssdr -agT-Wither-mat ter. -_ _.. _ _.. - - e ru yours M ,. - Very : t .;Thomas F.--.- -ff re in Encls. .. •_ _ - .. . _ -� -- _. � .. .....vx .. s _ +avtx.s�evq ._�.,--- .- .�.z.+: ��ha'+-r.�,t •. _.. - encls -• qua. s rt > F C% { i t r j'AMPOW ............ ... t r j'AMPOW 4 gi� SHEET N0. 4 �hFV •'�' 4 �i��.� � s C t 'si%mF��'"6NiAliIMAN jv 4t- ..r FOR- M- OF- RHONE OR_M OFPHONE MESSA m CODE NVMVER / EXTENSION .0 - TIM J SIGNED SIGNED // CK" TOPS V FORM 4003 "OYCE BR _ glowk,CLE�RKR Received by Town Clerk: JAN i 2 47 Pp '06 TOWN OF NORTH ANDOVER, MASSACHUSETTS APPLICATIONWARD OF APPEALS FOR RELIEF FROM THE ZONING (1RDI APPlicantye ✓ NANCE A Tel. No . 1. pplication is hereby made: 9 3. a) For a variance from the requirements of Section Paragraph and Table — of the Zoning By� l C9 For a special Permit under Section of the Zoning Bylaws. Paragraph Z c) As a Party Aggrieved, for review the Building Inspector or other authoriityislon made by a) Premises affected are land numbered �_ and building (s) k Street. b) Premises affected are prope North South rty with fran;ug�_ on th ( ) ( ) East ( West e Street. ( ) Sideof Street, and known as No. Street. c) Premises affected are in Zoning District X premises affected have an area of — -fL , ana the and frontage of_ square feet 1j_ feet, Ownership: a) Name and address of owner (if names): joint ownership, give all Date of Purchase T— Previous Owner b) 1• If applicant i not owner in the premise, • check his/her interest .� Prospective Purchaser Lessee Other Rev. 10/95 .19 2. Letter 'of authorization. for Variance/special permit required. 4• Size of proposed building: 0 ' - front; 3 5 - F teet deep; lieight �� stories: -90 "- feet. a) Apprcxiinate date of erection: _l� D„7 b) Occupancy or use of each floor: C) Type of construction: (•t oo,Q pta.+ e 5. Has there been a previous appeal, under zoinq, on these Premises? _yT S If so, when? y3"- 6. Description of relief sought on this petition. Please explain in detail below. (If requesting a variance or spe�idl permit lease fill out the attatched table,) ' The applicant is seeking authorization Co make minor interior alterations to a nonconforming structure. The applicant is, therefore,.seeking a special permit finding that the proposed minor interior alterations are not substantially more detrimental to the neighborhood than the existing structure. The applicant is also appealing the Building Inspector's ell o a buildiag permit authorizing the interiar minor a t -erasions. See Addendum, attached. ?. Deed recorded in the Registry of Deeds in Book 4 bL page Land Court Certificate Na. Book page The principal points upon which I base my application are a$ Follows: (must be stated in detail) See attached addendum. Y agree to pay the filing fee, advertisi incidental expenses ng in newspaper, and INCOI PLETF ANA I=GIBLE APPLICATIONS WILL NOT BE ACCEPTED OR HEARD AT T- P[78LIC 11EARENG. Name of Applicant (5) (Print)i_Z6 gnatu a of Applicant(s) Rev. 10/95 D SCRII'170'1 OF VARIANCE R EQUES-fL :CONING DISTRICT: Required Setback or Arca Eustmg setback Relief or Area Requested Lot Dimension Area . Street Frontage Front Setback Side Setbacks) Rear Setback Special Permit Request: ADDENDUM O SPECI SUBMITTED By 1049 PLrCATIQN R TY TRUST 1049 Realty Trust is following minor interior seeking authorization to m nonconforming structure locatedterations to the `fie the at 1049 Turnpike street:existinng, , 1• Remove or open P wall to a new kitchenette; 2. Enlarge the opening between the reception are main hall; a and the 3. Install interior partitions second floor, to allow for a small storage a structural) , on the Office. g room and one small These minor alterations are application which the Building Inspector sub hast of a building the grounds, anion o 9 Permit Superior Court g Other thins t Previously denied, on concerning the thing,, that pending litigation in Essex the issuance of an premises'should be resglVed attached). Y further building permits (see Prior to This decision was a l Exhibit "A, it Action No. 224771, and the Buil baled in the from denying Land court, civil Y g the permit on the g Inspector has been enjoined insofar as the applicant grounds of Pending litigation Premises is requesting to make alterations s opposed to alterations of the repairs to the decided by agreement of the premises. As to the that the minor alterations PP-11c e t and the Town Board of Appeals for presented to 1t was 'detrimental to a finding that they are not substantially morZonine nonconfonu' the neighborhood than the of su n ung structure• g pre-existing The proposed alterations are any way affect any aspect of the a purely internal structural changes. xternal buildin , they d° not in logically g Therefore, there g and they are not to the n or legally that the can be no contention, ghborhood than the existing substantially stantially more detrimental have no affect on the neighborhood building. The changes they are strictly one way or the other because internal. ATF16378/6094.5 EXHIBIT A KENNETH R MARONY Director Towyn of North Andover CONIMUNITVD { OFFleE OF DE, AND SERVICE S 146 Main Street North Andover, Massachusetts 01845 (508) 688_9533 December 26 1995 Mr. William Ten Port K' Barrett, Trustee 7010 Y -Nine Realty Trust Salem Street North Andover, MA 01845 RE: Building Permit 1049 Turnpike Streeticat1On Dear Mr. Barrett: N�un rN I�•u ` z 1 � G � CMUSE� The Building permit structure at 1049 application water Turn as submitted indicates or sewer s Pike Street is not that have been adviSedstem. In checkingConnected to the aPProved that there is with the Board of the town sewerage disposal neither Health, I application for a Building system at the s P°e able water nor an Additionally, g Permit is t0B_ T�� Thereforr�, the your Kmiec (Civil Suit subject property Appeals and, as No' 95-2201 vs, hes under litigation b the Civil such, will North Andover Y Agnes M. Suit has been not be issued'a Building Board of decided, g Permit until Yours truly, D• Robert Nicetta, Building Commissioner DRN;gb & Zoning Enforcement Officer c/Kevin Mahoney, Interim Town Manager tD OF APPJ'-ALS 688-1.154! JUL,;1'wriuu JJIJlLpIJG 688.9545 D. kink;, Niwtta CONSER VA710N 688-9570 M+Ch"I Huwnrd IiFA"""' 688-9540 Saud" star, N ANNING 6r;8-95.15 24' o • C W o 3-0 _ N p X l i 1\ N W m o — � 0 N • _ O �O L'07 °Tl ,N xom x Tl Qr - X ^ n • m • m N 70 m- mn 2-6 y m _ mz v 2-6 ` ftp A �' to D p v2 NT O:i�T1� w. :0 D — m rXO� O �l t9 -� z tg ^:m X -o m m u 7c p ° X n Z m v. v m a 8' 0' = z z 2-6 1 W N 0; • C W 3-0 _ N p X l i 1\ N W m o 0 �O L'07 ,N xom W N 0; 1� N W _ w � X l N W m 1� UNFINISHED • 2-6 UNFINISHED SORAGE Mat- ' ZZA :ST OF PARTIES OF INTEREST PAG'_-L_OF l JBIECT PROPERTY AF (PARCEL NAME (AGGRESS _ !a't C. 1 � tLrJ FD2�'V /�iNG ;/ {701 .5�9'�-n 67� /11�NBJ✓G�_ %/�, Bu TTERS app PAF,C�L NAA".t {ADORE;SS �esaL�y tGcts'� I // LDu,Jf2v H�LLa�J �{gvr2��ll �� . J n ^1 G S? N _ YAL4-e- t� c i,�uJ o� 1 '13N !'ji A- . -L- . n o o! T v +e.nla J Ke 6-t • I I CERTIFIED S7:DATE: assessor's office Pate 7 of e