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HomeMy WebLinkAbout1975-07-09July 9, 1975 - Mednesday Regular Meeting The BOARD OF APPEALS held a regular meeting on Wednesday evening, July 9, 1975 at 7:30 P.N. in the Town Office Meeting Room. The following members were present amd voting: Alfred E. Frizelle, Acting Chairman; William N. Salemme; Louis DiFruscio. Walter Jamitkowski, and James D. Noble, Jr. Chairman Serio arrived late due to a prior comm~ttment. Dr. Eugene A. Belivea-a was also present to vote on previous business. PUBLIC HEARINGS: EDWARD D. &NINA EAWAS~: The clerk read the legal notice. Attyo Philip Arsenault, representing the Eawash's, explained the frontage and setbacks. He stated that in 1954 and 1953, they purchased~ at, separate times and by separate deed, Lot 1 and Lot 2 which were appropriate with the Zoning By-Law. They built on Lot 2. The reason theyhave to come before the BOARD is because they propose to convey Lot 1 to their son~and both lots are in common ownership. Mr. Arsenault then presented copies of the deeds to the BOARD. They had these two sep- arate lots, he said, and built only one house and the land was re-zoned around them. Had they k~ownprior to the Zoning By-Law to convey the lot at that time they would have done so. With respect to hardship on this lot there is, first of all, a personal one. Without the variance, Lot ~ is just an e~ra large side yard for them. They are paying an assessment for all the footage for sewer and are not able to use it. They would build a single family house. The area has water and sewerage and is not inconsistent with the scheme of things on Mass. Ave. because a number of the lots are ~ui%e small in this area. The two lots immediately across the street total together 26,000 sq. f~. With respect to the Thomas side of the lot there is a substantial buffer between them. Whatever happens on Lot 1 would have no effect on Mr. Thomas' land. He announced that Mr. & Mrs. Eawash were present and would be happy to answer any ~uestions. Planning Board's letter of July 8, 1975 w~s read. OPPOSITION: Atlmy. Nichael W. Morris, 316Essex St., represented Mr. Lloyd Thomas, an abutter. Mr. Morris stated that they foresee several problems at the outset. ~irst of all, on Lot 2 the petitioner seeks a variance on the frontage requirement; on both lots they seek a variance from the area requirement; the rear line on Let ~ is 22... ft. instead of 30 ft. He respectfully reminded the BOARD that before it could grant a variance from the Zoning By-Law it must find 3 elements -hard, p, public good and not nullify the intemt and purpose cf the Town of North Andover. ~1 the property was bought approximately 20 years ago and in his examination of the 1943 North Andover Zoning By- Law it shows that a 30 ft. rear yard requirement was a necessity them which was some 10 years before the petitioner purchased the proper~y and, therefore, both lots were not t~Aildable at that time. There is no outside force that has brought hardship on the petitioner. The area in question shews it to be a well landscaped amd attractive lawn and only enhances the value of the property. He further commented that the only hard- ship present is the fact that they don't have 25,000 sq. ft. to build on and if this is a hardship it is one that is common to the whole area. He then read from Mass. decision Benjamin vs. Board of Appeals stating that variances must be exceptional in nature in order to grant them. This house could only serve to take from the immediate neighbor- hood. Mr. Thomas owns the Phillips Brooks House which has tremendous historical signi- ficance to the community. He or his heirs may have to sell some of this land in the future but would subdivide into two-acre lots. My client, he said, desires to be a good neighbor but we are talking about an 8,000 ft. change which would more than substautially derogate and probably nullify the Zoning By-Law. The BOARD was asked to consider the July 9, 1975 - cont. many problems this building would present along with the location and the facts in the 1943 By-Law. Mr. Frizelle noted that no dimensions on the proposed house are shown on the plan. Mr. Arsenault stated that it is to scale and the dimensions are 55'x24' proposed. He suggested thmt the BOARD view the proper~y. A motion wasmadebyMr. Noble to take the matter under advisement. Mr. Di~ruscio seconded and the vote was unanimous. The BOARD will view the site on August 9 and make a decision at the August 11 meeting. 2. UNITED~REIGR~WAYS, INC.: The legal notice w~s read. Atty. James E~ton, III represented the petitioner. He presented a "Memoranda" to the BOARD which is on file in the office. He stated that the Building Inspector halted the construction of a storage shed because he thought it should come before this BOARD. The attorney repeated what was requested in the application namely, that the existing use is a legally continuing non-conforming use or that the use is sufficiently similar to that permitted under the By-Law~ to allow the BOARD to allow it to continue its operation and construction at this location. Mr. Eaton first took up the matter of a legally non-conforminguse: this parcel of land is isolated being surroundedbyTowne St., which was discontinued years ag~and Turnpike S~. ArthurFarnumused the place for a sawmill and the property was conveyed to Charlotte Fa~num in 1946 or'47. Saul stored winter and summer materials for roads for the Common- wealth and when they did not renew the lease he leased it to United ~reightways in ~96~ Mr. Eaton's contention was that it has been used in this m~er since before the inception of zoning, lumber, sawdust, salt, sand, etc. United Freightways carries on the storage and curing outside of woo~chips and bark, and there are no business orders taken a% this location. Anybody ohoosing to do business with United Freightways is limitedto nothing smaller than a dump truck. It is merely an open warehousing for the curing of the product. ! thinkyou can find, said Mr. Eaton, that this is a legally existing non-conforming use or so similar that it is not an expansion of a non-conforming use. We need the blessing of the BOARD in order to get the right to put up the additiona~ loading platform that is needed. Secondly, the matter of a variance of the I-1 District, Section 14 on Warehmm~ings Atty. Eaton explained that this type of a product cannot be stored inside and there is no zone in the By-Laws of the town which allows open storage nor is there auyplaoe where a special permit for such is allowed; therefore, this type of thing is not wanted in North Andover. He stated that he did not believe that this type of curing was contemplated when the draf~- ers of the By-Laws put it together because it does not say that it can't be done. This area is ideal for this type of operation because the large trucks are not going through your more densely populated areas of town. They do not sell to individual home owners. The o~ndi~ions which effect this parcel make it unique. Althbugh it is 4 acres in size, only 2 are useable. He cited hardship by the fact that Mrs. Rea would lose the rent which she uses for taxes, etc. and if they had to seek another area it might cause the cos~ of the materials to go up. It would not derogate from the intent of the Zoning By-Law because if this was storage inaide i% would be okay. This particular use brings something that the public needs in a place where the public can get it and the supply is here to be put in the proper places of distribution. Mr. Frizelle questioned Mr. Eaton as to just what was being stored and the reply was, lime, wood chips and bark. The area of storage will not expan~id Mr. Eaton. The July 9, 1972 - cont. loa~er is kept on the property a~d once in awhile a trailer. The BOARD asked several questions regarding deck, oil storage, etc. A letter from the Planning Board dated July 8, 1975 was read. OPPOSITION: Walter Hoyt, Sullivan St.: The gentleman stated that this shed is something out of this worl~ over which they pile chips. They have a big Hough which bangs away all day long. There is a very bad smell from the materials on a muggy day. He said he had never seen the lime covered and he goes right by there every morning. He termed it just a "dump" and very noisy. Over the Fourth they had about 12 large tankers there and with the filling station right across the street he predicted a terrible accident. He advised the BOARD to take a look at the place. Mr~.Giacolone, Sulliva~ St.: Attested to the fact that she had never seen the lime covered either. T. Cuson, Sullivan St.: There are no less thau 6 trailers sitting there, he sai~and not the kind that hold wood chips. The ro~d is in b~d enough shape as it is and didn't think that trucks pulling out from there helped the situation. Joseph Cushing, Gray St.: Although the zoning prohibits this, United Freightways has used this parcel at the good will of the people for years, he stated. It is a non- conforming use and if the BOARD were to give this to them they have, in fact, re-zoned a portion of the town which we donor want like this. He commented that lime is a caustic material amd should be covered. Beverly Whipple, Turnpike St.: She voiced objection to the petitioner blocking off TowneRd. with his operation. According to Mrs. Whipple it is blocked off constantly and she cannot get through. Charles Nelson, Gray St.: Concerned with the safety of the townspeople and stated that he did not think one would have to be in site of'this to object to it. Howard Thomsen%~ Farnum St.~.F~$~at in light of the fact that the town has spent alot of time in preparing~s~%~Onot set a precedent for issuing unnecessaryvari- antes. This is clearly a non-conforming operation, said Mr. Thomson. Sid Colemam, Farnum S~.: Purported that he had seen clouds of lime dust ri~ing from that area and felt that granting a variance would nullify the pains that the town has taken along Rte. 11~. He would not care to see others handled loosely when he had to sacrifice to stay within the Zoning By-Law. Arthur A. Thomson, Esq. re~resenting Mr. Fred Boothman who lives across the street from the location in question. Ee invited Mr. Boothman to speak after which Mr. Boothman stated that he g~ve Ed Saul the permission to rent to UnitedFreightways for a lime pit because Saul needed the momey, but specified that they must conform. They ran into trouble very early - lo~ding tank trucks at 3 A.M. amd it has gone on this way because he tries to be a good, passive neighbor. Now they have increased it without a permit to chips and bark. It smokes in the winter and they have to work 6 days a week throw- ing these chips over in order to prevent a fire. I have been existing under these conditions and everyone I have talked to referred me to Mr. Foster, said Boothman. According to Boothman, the Building Inspector, Mr. Foster, told him that he had found 2 or 3 alternative sites for the operation where they would never have any trouble. He went on to say that he has been waiting for some action. Mr. Boothman also stated that he has never seen a cover on any cf the lime. He further stated that they forget July 9, 1975 - cont. to w~ter it down and sometimes oars h~ve to use their lights in the daytime in order to get through the clouds. Another serious condition occurs when it is wet mmd slippery. They are operating illegally now, he said, and didn't know why Mr. Fosterws~not present and why he had not done anything about it. He strongly advocated moving them out and not allowing a crime to get a dividend. Atty. Thomson spoke wishing to remind the BOARD of the 3 conditions that must exis% in order to grant a variance. He commented on the legal notice as it appeared in the Eagle- Tribune inasmuch as there isn't any item in our zoning which permits this activity. The petitioner is actually seeking an extended use by constructing a storage shed and storing up to 50,OO0 cu. yds. which w~uld be in excess of what is stored there now. You just can't increase a nou-conforming use, s~id Mr. Thomson. Also, there is no hardship of the land. Atty. Eaton stated that they had no choice but to go forward ~ithout ~he BOARD'S open approval or either of the 2 alternatives. My client, he said, has not been advised by the Building Inspector of any other locations. We have no place else to go and will go out of business on that basis. The t~dw__~ers are there to hold lime and they did not agree that another spot in town would be more advantageous. The lease is renewed annmally and it is a closed corporation in which the family is involved. If necessary, Mr. Rea would be very happy to show the BOARD around. Mr. DiFruscio made a motion to take the matter under ~dvisement. Mr. Salemme seconded the motion and the vote w~s unanimous. The BOARD decided to view the site tentatively on August 9, 1975. DECISION - CNAR~.~.S CONSTRUCTION (CEARLES MATSES): Frank Serio, Jr., Dr. E~gene A. Beliveau, William N. Salemme, Alfred E. Frizelle and Louis DiFruscio, all members who sat on the petition were present and voting. The letter received from the Police Chief da~ed June 20, ~975 stating changes in access and e~'ess'~.s read. Atty. Domenio Scalise was representing in place of John J. Willis, Sr. A discussion took place regarding when the sandwich shop would be torn down. The BOARD concurred that it shall be razed by December 31, 1975. The conditions on the Special Permit were read by the Chairmauas follows: 1) the proposed uses to take place in the present building on the premises known as the former "Sutton Nill"$ 2) if the said building shall be destroyed by fire, flood or act of God or demolished then this Special Permit shall be void; 3) retail stores shall be limited to the "saw-tooth" design building as shown on the plans accompany- ing the application, dated April 28, 1975; 4) retail parking spaces shall be in accordance with the provisions of Section 7.1, plus additional parking spaces for each manufacturing operation or Sther use allowed by Section 4.131 in accordance with Section 7.1; 5) no automobile service or filling station is allowed on the premises; 6) a screen known as a "stockage" or similar type fence shall be oreo%ed to the rear of the building and shall be sufficient to shield from view, trash receptacles, grease and garbage barrels; 7) the food and sandwich shop which is presently located on the Sutton Street side of the premises as shown cn the plans which accompanied the application is to be razed before DecemBer 31, 1975; 8) this permit does not apply to the land designated as Parcel B on the plans accompanying the application; 9) an entrance sh~ll be constructed on the westerly side of the premises on Sutton St. and an exit shall be constructed on the easterly side of the premises on Sutton St., each opening to be not more than 50 feet and shall be designated one way as stated above; further, there shall be an island constructed along July 9, 1975 - cont. Sutton S~t. between the aforementioned opening~ which shall prevent ingress and egress to said street, the plans shall be amended 'prior to signatures by the BOARD. A motion was made by Mr. Frizelle to GRANT the variance on Sec. 4.131 (7) and delete the word "non" from "non-retail"w ~Pne motion was seconded by Mr. Die'rustic. The motion was then amended to delete "and no o~her retail stores of any kLud" from Sec. 4.131 (8) and seconded by Mr. DiFruecio. 'The vote was unanimous. Mr. l~rizelle m~de a second motion to GRANT the Special Permit purs.~a~t to Sec. 9.3 of the ZOning By-Law with the conditions as listed above. The motion was seconded by Mr. Dil~ruscio smd then amended to include the provision that parcel B shall be deleted from the Variance a~d Special Permit; Mr. Di~ruscio seconded and the vote w~s unani- molls. Mr. Serio advised Mr. Soalise to have the plans amended. CONTINUATION OF ~I~ARING ON ARDON YARN REALT~ TRUST~ Mr. Noble sat on this petition.~ Atty. Nagnus Greenman, 185 Devonshire St., Boston presented a covenant rm~uing with'the land and stated that'he would'put it with the deeds to these 2 parcels; and, in addition, the BOARD could insert that as a limitation of use and in that way there would be no problem about the school childred being bussed. It will bind the gran~ees, their heirs and successors, he saidt and could be enforced by the Town by refusing to furnish bus transportation. Charles Wills, Trustee of Ardon ~ Realty ~k-ust, Stated that the public way ends right at the Town line. The question of why didn't we construct 150 ft. of legal street is because we have been to the Planning Board and they would not consider our petition. Our only avenue of relief is to come to this Board, he said. Neseere. Serio and Frizelle felt that the Town could no~ avoid bussing the school children. Mr. Serio then read the minutes of the Pl~uning Board meeting of Jan. 1974. Mr. Greenman stated that there is a hardship of natural barriers and there is nothing else they can do with the land. There would be no substantial detriment to the public good because the lots would be 5 acres apiece. Also, there would be no derogation from the intent and purpose of the Zoning By-Law because there are only 2 sites and actual ph~ioal access from Stouecleave Rd. would be more th~ adequate. Mr. Noble commented that, basically, the abandoned right of way would be a continuation of the Nissile Site Rd. Would there be some way in which something could be done to lay out a permanent easement to allow for the State taking this for recreation? Mr. Wills stated that there would be no problem if the Town wanted an easement left for a future street. Mr. I~l~ruscio's motion to take the m~tter under advisement was seconded by Mr. Noble and the vote was unanimous. PRESCOTT BT. N~RS~NG HC~ - Henry l~itzgerald representing stated that they had increased the parcel by 6/10 acre to accomod .ate parking and to meet ~ requirements. He felt that he should present the revised property line plan to the BOARD. The change allowed them to create a larger green area in compliance with the ~t~A. Mr. ~rizelle had reser- vations about acting on anew set of plans and it is contrary to the By-Law te give official advice. The BOARD decided to obtain advice from Town Counsel on the matter. ARDON ~AP~ REALTY TRUST: Mr. Saleratus made a motion to deny the request and Mr. Noble seconded. Iktring a discussio~ Member Frizelle stated that he did not feel that they had met the statutory requirement and that we would be opening a hornet's nest because of so much land-locked land in North Andover. The vote on the motion ~s unanimous. July 9, 1975 - cont. Letter to Town C~unsel from Selectmen RE Dr. Pmtterson: The BOARD discussed the letter and decided that there were two oo~rses of action - either court or a new public hearing. Letter to Town Counsel from the Building Inspector RE' Chri~topher Adams and George Farkms: The letter was read by the Chairman. Nr. Salemme mdc a mo~ion to accept the letter. The motic~ was seconded by Nr. DiFruscio aud the vote was unanimous. Lette~ ffrom Board of Selectmen RE Appointments: Letter was read and accepted. The BoArD officially welcomed Nr. Rmlph Jo~ce, Jr. as a new alternate member. Mr. Saleratus made m motion that Frank 8erio be appointed ms Ohairman. Mr. ])iFruscio' seconded and the vote was unanimous, A motion was made by Mr. DiFruscic to appoint Alfred E. Frizelle as Vice-Chairman and was seconded by Mr. Saleratus. The vo~e was unsmimous. Mr. DiFruscio made a motion to elect William N. S~lemme as Clerk. The motion was seconded by Mr. Noble and the vote was unanimous. The meeting adjc~xrned mt 10:30 P.M. ~ilda Blacks~ock )