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HomeMy WebLinkAbout20160419 Legal Documents & Correspondence - Legal Document - 2302 TURNPIKE STREET 8/20/2009 RECEIVED URBELIS&FIELDSTEEL,LLP AUG 2 5 I009 155 FEDERAL STREET NON i r-,r,rvUUVER BOSTON,MASSACHUSETTS 02110-1727 PLANNING DEPARTMENT THOMAS J.URBELIS Telephone 617-338-2200 Andover e-mail tjuCuf-law.com Telecopier 617-338-0122 Telephone 978-475-4552 August 20, 2009 Judy Tymon Town Planner Town of North Andover 1600 Qsgoou Street North Andover, MA 01845 RE: 2302 Turnpike Street Dear Judy: Enclosed is a copy of the Covenant which was recorded Wednesday, August 19, 2009. Very truly yours, Thol ma . Urbelis TJU/kmp Enclosure s:\wp51\work\n-andove\corresp\tymon.itr-fournier.doc DECLARATION OF PROTECTIVE r1SL COVENANTS, CONDITIONS AND RESTRICTIONS This Declaration of Protective Use Covenants, Conditions and Restrictions is made as of this 1st day of July, 2009,by Kevin Murphy and Elizabeth Murphy,their successors and assigns (herein collectively referred to as the"Declarant"). WITNESSETH: d WHEREAS,Declarant is the current owner of real 'property, consisting of two parcels of land collectively consisting of 3,52 acres of land,known and numbered as 2302 Turnpike Street,, <) being shown as Parcel 1 and Parcel 2,respectively, on a plan entitled"Plan of Land in North Andover, Mass. owned by Kevin and Elizabeth A. Murphy" dated February 29,2008, Scale 1"=60' prepared by Scott 1, Giles,R.P,I-S., and whereby Parcel 1 (2302 Turnpike Street)is identified in a Deed to Kevin Murphy and Elizabeth A.Murphy recorded with the Essex North k identified I e 0 ,6 District Registry of Deeds in Boo 9834,Page 206, and Parcel 2) is id ntif edin a Deed t Kevin Murphy and Elizabeth A.Murphy recorded with said Deeds in Book 10019,Page 161 (hereinafter referred to as,the "Property;" and, WHEREAS,the Declarant's Property was the subject of Warrant Article 44 of the 2008 Annual Town Meeting for the Town of North Andover where said Article requests approval for the rezoning of the Property from Residential 2(R-2)to Business 2 (B-2); and, AL. WHEREAS, the Declarant has agreed to prohibit certain uses Outlined Under the list of uses permitted within the Business 2 Zoning District as outlined under Section 4.127 of the -Z Town of North Andover Zoning Bylaws; NOW, THEREFORE, for good and valuable consideration,receipt of which is hereby acknowledged,and for the mutual promises and covenants contained herein, the Declarant declares that the Property is and shall be held, transferred, leased, encumbered, conveyed, improved and occupied subject to the covenants and restrictions,hereinafter set forth below: 1. Land Subject to This Declaration. The real property which is, and shall be, held, transferred, sold, conveyed and occupied subject to this Declaration is the Property as defined above. 2. Use Restrictions. Notwithstanding the uses permitted within the Business 2 Zoning District as outlined under Section 4,127 of the Town of North Andover Zoning Bylaws, the Declarant agrees the Property shalt not be used for the following purposes: a. Automobile service station; and, b. Taxi depot, C. Drive-through facilities for restaurants greater than 1,500 s.f gross floor area. Subject to the use limitations above,the Declarant shall be permitted to use the,Property for all other uses permitted by law, including but not limited to, other uses permitted under the DECLARATION OI-'PRO'I"L'C'I'[Vf:USE COVL-i4ANTSS 908(Rey 6 30 09) Final doc Clean(2) Town of North Andover Zoning Bylaws, as amended. 3. Enforcement. It is expressly understood and agreed that this Declaration of Protective Use Covenants, Conditions and Restrictions shall attacb to and run.with the land and run for the benefit of the Town of North Andover. Enforcement of this Declaration shall be by a proceeding at law and/or in equity by the Town of North Andover, acting by and through its Planning Board, against any person or persons violating or threatening to violate any covenant either to restrain the violation and/or recover damages suffered by them for any violation thereof The Declarant, or the Towne of North Andover and their successors and assigns, shall have the full right to enforce this Declaration of Protective Use Covenants, Conditions and Restrictions both in law and at equity, and to recover damages. 4. Severabili y. Each and every one of the covenants, conditions and restrictions contained herein shall be considered to be an independent and separate covenant and agreement, and in the event that any one or more of the covenants, conditions and restrictions shall, for any reason, be held to be invalid or unenforceable'by acourt of law,then all remaining covenants, conditions and restrictions shall nevertheless remain in Rill force and effect. 5. Duration. All of the foregoing covenants and restrictions shall continue and remain in full force and effect at all times against the owner(s) of any lot(s)in such Property,regardless of how such title was acquired, in perpetuity,unless applicable law provides that such covenants and restrictions cannot continue and remain in full force and effect in perpetuity, in which case they shall continue and remain in full force and effect:for a period of thirty (30) years from the date of recording hereof,after which time said Declaration shall automatically be extended for successive ten(10) year periods,by an instrument which shall be recorded with the Essex North District Registry of Deeds by the owner(s) of the Property or which may be recorded by the'-town of North Andover.,within the time prescribed by M.G.L. c. 184, s.27. 6. Non-Waiver. The failure or delay of the Town of North.Andover or Declarant to enforce the restrictions,covenants or other provisions herein shall not be deemed a waiver of the right to do so thereafter as to the same breach or to one occurring prior or subsequent. 7. Amendment and.Termination. The provisions in this Declaration may be amended, modified,and/or terminated by vote of the record title holder of the property, and with the assent of the Town of North Andover Planning Board,but such amendment,modification and/or termination shall not be effective until such time as it is reduced to writing, signed by the Property owner(s) of record, and recorded with the Essex North District Registry of Deeds. 8, Successors Bound. All of the covenants,conditions and.restrictions described herein.shall. run with the land, and the grantees of the Property, by accepting the deed thereto,accept the same subject to such covenants, conditions and restrictions, and agrees for themselves,their heirs, administrators, successors and assigns to be bound by each such covenant, condition and restriction jointly, separately and severally. DEC:L.ARA'rION OF PRO'r['sOINE3 tlsH COVENANTS 5 9 08(Rev 6 30 09) Final doe Clean(2) 9. Extent of Covenants, Conditions and Restrictions. The covenants, conditions and restrictions created pursuant to this Declaration: (a) shall be subject to restrictions presently of record, if any; and, (b) shall only be effective after: (i)the North Andover Town Meeting adopts the Zoning Bylaw Amendment in the form set forth in the published 2009 Annual Town Warrant, (ii) all subsequent actions shall have been completed that are necessary to cause such Zoning Bylaw Amendment to be incorporated into the Zoning Bylaw(such as approval by the Attorney General); (iii)to the extent that any referenda challenging the Town Meeting's adoption of the Zoning Bylaw Amendment or any other appeal.of the Town Meeting's adoption of the Zoning Bylaw Amendment has occurred, such referendum or appeal [a] has been fully adjudicated by a court having jurisdiction over such a matter(which court upholds the Town Meeting's adoption of the Zoning.Bylaw Amendment)the decision of which is not subject to appeal or from which.no appeal is taken within.the relevant period; [b] such referendum or appeal is dismissed with prejudice, or [c] the appeal is settled by the parties thereto with the Zoning Bylaw Amendment remaining in force and effect without any modification thereto (collectively, ".Final Zoning.Bylaw Approval"), IN WITNESS WHEREOF, Declarant has caused this Declaration to be executed under seal by Kevin Murphy and Elizabeth Murphy, this Ist day of July,2009. f �_f Jul,/f� Fliz4h_&b.Murphy `;.,,... Kevin Murphy COMMONWEALTH OF MASSACHUSE`I'TS 1 co ESSEX COUNTY On this lst day of July, 2009, be:Core me, the undersigned notary public, personally appeared Elizabeth Murphy and Kevin Murphy proved to me through satisfactory evidence of identification, which was a El driver's license; Kpersonally known to me; or C1 personally known to 3r`j party witness personally known to me, to be the persons whose names are signed on the preceding or attached document, and acknowledged to me that he/she signed it voluntarily for its stated purpose. 7zv Notary Public �r My CommissiOJTJbW1res;M01_AK NOTARY RUI3t.IC C'ommonweail')o'h!assachossti<i lAiCIARATION OF PRO'FECI'IVE USE COVENANTS 5 9 08(Rev 6 30 09) Final doe Clean(2) my dommiss ni+ E xnlrr, ACCEPTANCE BY TOWN OF NORTH ANDOVER The undersigned Board of Selectmen of the Town of North Andover hereby accept the foregoing.Declaration of Protective Use Covenants, Conditions and Restrictions on behalf of the Town. Selectman I SLectmatI6 ' ........... Selectman Selectman Commonwealth of Massachusetts Essex, ss. 2009 On this day of V e U S' 2009, before me, the undersigned notary public, personally appeared the above-n4 e BoardY of Selectmen proved to me through satisfactory evidence of identification, which was known to me to be the person whose name is signed on the preceding document in my presence and acknowledged to -me that they signed it voluntarily for its stated purpose, as Selectmen of the Town of Andover. Notary Public My Commission Expires. le, DECLARATION OF pROTECj'jyF,USE COVENANTS 5 9 08(Rev 6 30 09) Final doe Clem(2) P r ,r i Pd iP ,y T P a t p 9 n N A Y d ' 0' V O Y r P Y P 4 d 2.25 A " ,r " r .i d .r P i P i p 5 21.35 A 6 8.07 A 19 7 3.12 A 1.07A Po 10 9.02 A 8 1.52A 0 9 15 1A 3.52A 114 7A 1 2A N1a) 108A 61 CONDO Map 108 1.49 A ;• 37 2 1.47 A 3 2A 1.48 A 50 U r 40 4 36 1.3 A o 25.5 A 5 1.02 A 2.03 A .02 A 6 35 " 2A 34 1.35A 57 1.35 A 59 „58 43560 s 39 0 1.03 A CONDO i Andover 01,,..�.,HHo Legend of _ Index Grid �, Urdmproved Road ;sensors Municipal Boundary®Hook Lines Pr°perty Parcels --I—Rail Line Is(as of January 1,20�9� Water Bodes i Builder Lot 000 1,200 Ssncnust 1^Easement ',. Feet Rimed Apil23,2000 Page 1 of 2 Ippolito, Mary � Fro in: John Simons gohnlsimons@gmail.com] Sent: Wednesday, July 01, 2009 9:30 AM To: Tymon, Judy Cc: Ippolito, Mary Subject: RE: 302 Turnpike Street, Kevin Murphy (Covenant Regarding Rezoning)(2008 ATM) Judy and Mary, do remember this a bit. The applicant did agree to restrict certain B-2 allowed uses. You might want to go back to our minutes prior to the 2008 town meeting and see what we agreed to. The drive through limitation is not ideal but it would restrict virtually everything except for a small Dunkin' Donuts or something similar. Let me know what you find. Thanks and regards, John S ----------------------------- John Simons 25 Ironwood Road North Andover, MA 01845 Mobile: (978)857-9740 Home: (978)689-2514 johnlsimons(a-)gmail.com From: John Smolak [mailto:jsmolak@smolakvaughan.com] Sent: Monday, June 29, 2009 4:27 PM To: JTymon@townofnorthandover.com Cc: johnisimons@gmail.com; mippolito@townofnorthandover.com Subject: 302 Turnpike Street, Kevin Murphy (Covenant Regarding Rezoning)(2008 ATM) Hi Judy: This matter appears to have fallen through the cracks and relates to a rezoning covenant agreed to by the site owner, Kevin Murphy and Elizabeth Murphy, as a condition to the Board's support for the rezoning related to Article 44 of the 2008 Annual Town Meeting. I had submitted the attached to the Board and Lincoln Daley before Town Meeting in 2008 as part of a rezoning in 2008 but the original may still be in the Planning Board files. This happened at the time of Lincoln's departure and your arrival last year. If you cannot locate it, then perhaps we can have Kevin Murphy re-execute an updated Covenant and then have the Planning Board process it through the Selectmen who would need to accept the covenant as per direction of Town Counsel last year. Let me know if you'd like to discuss the attached. Murphy is not planning anything for the property immediately, but thought we should follow up, finalize and record the final version of the attached. Regards, John John T. Smolak, Esq. 7/1/2009 Page 2 of 2 Smolak & Vaughan LLP East Mill 21 High Street, Suite 301 North Andover, Massachusetts 01845 Tel. 978.327.5220 (Main) Tel. 978.327.5215 (Direct) Fax 978.327.5219 E-Mail:jsmolak@SmolakVaughan.com Web Address: www.SmolakVaughan.com -------------------------------------------------------------------------------------------------------------------------------------------------------- ---------------- IRS CIRCULAR 230 NOTICE Applicable Treasury Regulations require that I inform you that any U.S. tax advice in this communication and any attached document is not intended or written to be used, and cannot be used by any taxpayer for the purpose of avoiding U.S. tax penalties. -------------------------------------------------------------------------------------------------------------------------------------------------------- ---------------- STATEMENT OF CONFIDENTIALITY This communication is intended only for the use of the individual or entity named as the addressee. It may contain information which is privileged and/or confidential under applicable law. If you are not the intended recipient or such recipient's employee or agent, you are hereby notified that any dissemination, copy or disclosure of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us at(978) 327-5220 or via return e-mail to jsmolak@smolakvaughan.com and expunge this communication without making any copies. Thank you for your cooperation. -------------------------------------------------------------------------------------------------------------------------------------------------------- ---------------- DISCLAIMER REGARDING ELECTRONIC TRANSACTIONS: This communication does not reflect an intention by the sender or the sender's client or principal to conduct a transaction or make any agreement by electronic means. Nothing contained in this message or in any attachment shall satisfy the requirements for a writing, and nothing contained herein shall constitute a contract or electronic signature under the Electronic Signature in Global and National Commerce Act, any version of the Uniform Electronic Transactions Act or any other statute governing electronic transactions. 7/1/2009 From:Smolak & Vaughan LLP 978 327 5219 07/20/2009 12:17 #606 P.001/007 FACSIMILE TRANSMITTAL SHEET SMOLAK&VAUGHAN LLP JEFFERSON OFFICE PARK MAIN (978)327-5220 820 TURNPIKE STREET,SUITE 203 FAX NUMBER:R• (978)327-5219 NORTH ANDOVER,MA 01845 FROM: John T. Smolak,Esq. CLIENT#: DATE: July 20,2009 MATTER#: NUMBER OF PAGES SENT(Including Cover Sheet): Mary Ippolito/Lincoln North Andover 978-688-9542^ - 978-688-9535 Daley. Planning De t COMMENTS: TURNPIKE STREET COVENANT Mary: As discussed. Thanks. //John IF YOU EXPERIENCE ANY PROBLEMS WITH THIS TRANSMISSION OR DO NOT RECEIVE ALL PAGES,PLEASE CALL(978) 327-5220. This telecopy is attorney-client privileged and contains confidential information intended only for the person(s) named above.`Any other distribution,copying or disclosure is strictly prohibited,if you have received this telecopy in error,please notify us immediately by telephone and return the original transmission to us by mail without making a copy. From:Smolak & Vaughan LLP 978 327 5219 07/20/2009 12:17 #606 P.002/007 John Smolak From: System Administrator To; jtymon@townofnorthandover.com Sent: Monday,July 20,2009 12:11 PM Subject: Undeliverable:Planning Board Meeting--2302 Turnpike Street--Murphy--Use restriction- Article 44 of 2008 ATM Your message did not reach some or all of the Intended recipients. Subject: Planning Hoard Meeting--2302 Turnpike Street--Murphy--Use restriction--Article 44 of 2008 ATM Sent: 7/20/2009 12:10 PM The following recipient(s)could not be reached: jtymon@townofnorthandover,com on 7/20/2009 12:11 PM This message is larger than the current system limit or the recipient's mailbox is full. Create a shorter message body or remove attachments and try sending it again. <mall.smolakvaughan.com#5.2.3 smtp;450 5.2.3 Msg Size greater than allowed by Remote Host> 1 From;Smolak & Vaughan LLP 978 327 5219 07/20/2009 12:17 #606 P.003/007 Page I of 2 John Smolak From: John Smolak Sent: Monday,July 20,2009 12:10 PM To: 'Tymon, Judy' Cc: 'John Simons(johnlsimons@gmail.com)' Subject: Planning Board Meeting--2302 Turnpike Street--Murphy--Use restriction--Article 44 of 2008 ATM Attachments: Declaration of Use Restrictions 5.9.08 [Executed].pdf Hi Judy: I received a call from Mary requesting that I attend tomorrow night's Planning Board meeting but I'm wondering whether that is really necessary. As you now know, the attached Use Restriction was signed by the landowners as part of a rezoning effort for the property referenced above at the 2008 Annual Town Meeting. The rezoning from R-2 to B-2 was approved at the 2008 ATM. I recall that the use restriction document was reviewed by Town Counsel,was signed by the owners,and was submitted to Lincoln Daley on behalf of the Board just after the public hearing on the rezoning warrant article 44. When I looked through my files the other day, I called the Planning Office to determine whether the originally executed document was in the Board files and was told it was not. So it appears that the document was never forwarded to the Selectmen for signature and must have fallen through the cracks between the time that Lincoln Daley departed and the time you came on Board. Accordingly,we have just had the document re-executed. My question at this time is whether you really need for me to be present for tomorrow night's meeting since the action involved is simply to send the attached document to the Selectmen so that the Selectmen could vote to sign the document and we could get the same recorded? I will attend if required, but it seems that there are other agenda items more worthy of the Board's time as opposed to any discussion concerning this document. Please advise. Thank you. Regards, John John T. Smolak, Esq. Smolak & Vaughan LLP East Mill 21 High Street, Suite 301 North Andover, Massachusetts 01845 Tel. 978,327.5220 (Main) Tel. 978.327.5215(Direct) Fax 978.327.5219 -Mail:jsmolak@SmolakVaughan.com Web Address. www.SmoLakVaughan.com 7/20/2009 o �® 47,, �4 d O��coceia e2wecn �'i. PLANNING DEPARTMENT Community Development Division 1600 Osgood Street North Andover,Massachusetts,01845 July 27, 2009 Board of Selectmen 1600 Osgood Street North Andover, MA 01845 REFERENCE: Article 44 ATM 2008 Declaration of Use Covenants 2302 Turnpike St. Dear Board of Selectmen Members: The town of North Andover approved Article 44 at the Annual Town Meeting 2008. The approval of this article resulted in a change of zoning from Residential 2 (R-2) to Business 2 (B-2) for 3.52 acres of land known as 2302 Turnpike Street, Map 108A, Parcel 9. At the time of the vote, the owner of the property agreed to a covenant which would restrict certain uses on the property, excluding the following uses: • Automobile Service Station • Taxi Depot • Drive-through facilities for restaurants greater than 1500 s.f. gross floor area. These restrictions were discussed with the Planning Board at the April 26, 2008 meeting and approved by the Board at the May 6, 2008 meeting. The covenant has recently been reviewed by the Planning Board at their July 21, 2009 meeting and was referred to the Board of Selectmen for approval. A copy of the covenant is attached. Attorney John Smolak, representing the owner of the property, will provide you with the original document for signatures. Please let me know if you have any questions. Very truly yours, Judy Tymon Town Planner Enright, Jean From: Brown, Gerald Sent: Wednesday, November 18, 2015 12:50 PM To: Enright,Jean Subject: RE: Earth Works - 2302 The Application looks Great and I will agree to that Memo move forward to the Site Plan Approval to the Planning Board From: Enright, Jean Sent: Wednesday, November 18, 2015 12:43 PM To: Brown, Gerald Cc: Kfoury, Eric Subject: FW: Earth Works - 2302 Jerry, Below is an explanation of the Use and bylaw sections that apply. Are you ok with this? Sincerely, Jean Enright Assistant Director Community and Economic Development Town of North Andover 1600 Osgood Street,Suite 2035 North Andover,MA 01845 Phone 978.688.9533 Fax 978.688.9542 Email: jenright@townofnorthandover.com Web: www.TownofNorthAndover.com From: Jill Mann [mailto:1illC mann cp com] Sent: Wednesday, November 18, 2015 10:33 AM To: Enright, Jean Subject: Earth Works - 2302 Good morning Jean, 1 As noted in the application submitted by Earth Works Inc.,the Petitioner is seeking to develop 2302 Turnpike Street, which is located in the B-2 Zoning District,to accommodate Earth Works growing business and to add a retail component. Prior to filing the application, I reviewed the permitted by right uses for the B-2 District, Section 4.127 and confirmed that the B-2 District allows retail (Section 4.127(1)) and office (Section 4.127(4)) uses as well as indoor parking and storage (Section 4.127(21)) associated with the permitted uses. Prior to filing the application, I discussed the various uses with the principal of Earth Works, Danny Gill, and informed him that there is no permitted outdoor storage of any equipment or material permitted at this site and therefore he agreed to refrain from any activity that was not permitted by right. If you require any additional information, please do not hesitate to call me. Best regards,Jill MANN&MANN,P.C. COUNSELLORS AT LAW 191 SOUTH MAIN STREET MIDDLE,TON,MA 01949 TEL: 978-762-6238 FAX: 978-762-6434 This transmittal and/or attachments may be a confidential attorney-client communication or may otherwise be privileged or confidential. If you are not the intended recipient, you are hereby notified that you have received this transmittal in error; any review, dissemination, distribution or copying of this transmittal is strictly prohibited. If you have received this transmittal and/or attachments in error, please notify us immediately by reply or by telephone (call us collect at 978-762- 6238) and immediately delete this message and all its attachments. 2 Planning Board—North Andt-r 230271—plke Street Page 4 of 6 B-2 DISTRICT REQUIREMENTS A. General Dimensional Requirements of the B-2 District As shown on the Site Plans and the Architectural Plans,the development of the Property and the construction of the Buildings and Infrastructure comply with or exceed all of the applicable dimensional and density requirements of the B-2 District B. General Parldng Requirements of the B-2 District For purposes of calculating the number of parking spaces,the Petitioner respectfully suggests that the proposed Project requires a total of thirty-four(34)parking spaces and thirty-seven(37)parking spaces have been provided.The Petitioner based its determination on the following: Use Square Footage Spaces Required Spaces Provided Retail Use 4,251 S.F. 15 spaces +15 (3.5 spaces per 1,000 so (4251/1000)*3.5 Office Use 3,981 S.F. 12 spaces +12 (3.0 spaces per 1,000 sj) (3981/1000)*3.0 Storage Use 25,766 S.F. 7 spaces +7 (a25 spaces per1,000 sJ) f 25766/1000)*3.0 _ 34 parking spaces 37 parking spaces Conditions for Approval: Petitioner suggests that the proposed Project will: (i)comply with all applicable Bylaw requirements,(ii)will have no adverse impacts on the surrounding community,(iii)not involve any substantial outdoor activities,(iv)allow an existing North Andover business to remain in North Andover and to grow its business operation within the Town,and(v)clean-up the Property and provide for a more attractive entrance vista transitioning from Middleton to North Andover. Based upon the foregoing and the other materials submitted with Petitioner's request for relief,Petitioner respectfully requests that the Planning Board find the following: 1. Compliance with all Filing Requirements-The Petitioner has complied with all submittal and other requirements of Site Plan Review. 2. Compliance with all Density.Dimensional and Parking_Requirements for the B-2 District and Properties Located along Route 114(Turnpike Street). As shown on the Site Plans,the Buildings and associated infrastructure,parking areas and loading areas comply with all applicable density,dimensional and parking requirements under Sections 7 and 8.1 and has been designed with sufficient loading areas and parking. S:lGlll(Earlh,vonEr)2015-41-Turopike St.N.AndoverVZ ftLjoL4ppllmtlonlM—doa Enright, Jean From: Enright,Jean Sent: Thursday, December 17, 2015 3:27 PM To: tju@uf-law.com Cc: Enright, Jean Subject: 2302 Turnpike Site Plan Review Application Attachments: 2302 Turnpike SPR Application.pdf, 2302 Turnpike G. Brown Use determination.pdf; 2302 Turnpike Use dedicated Sq Ft.pdf;Architectural Plans.pdf Hi Tom, The Planning Board asked that I consult with you to determine if the Use for a proposed project is allowed in the B-2 Zoning District. The applicant has presented the Primary Use as Retail and Office with Accessory Uses of Storage and Parking. Based on the amount of space dedicated on the Site Plan for storage and indoor parking the Board felt that there was a question as to which was the Primary Use—retail/office or storage/parking. Gerald Brown: Attached is an email from Gerry confirming that he believes the proposed Use is allowed. Bylaw Definition: 2.21 Accessory Use or Structure A use or structure subordinate to the principal use of a building on the same lot and serving a purpose customarily incidental to the use of the principal building. Description of proposed Use provided by the applicant(to supplement the information on the attached email from Gerry Brown): The retail use is going to be a contractor showroom. The retail component will highlight the types of work, pictures, miniature displays for various contractors. Plumbers, Electricians, Landscapers, roofers, ..... all types of building contractors. They will have business offices in the main building and will have areas to meet with clients to review projects and materials. Some of the materials will be stored on premises, some will be direct order. But all of Danny's equipment(landscape and site design) and supplies (other than the large excavators and other heavy duty equipment that will stay on jobs), trucks, and some materials will be stored in doors at the property. Applicant's Attorney comments: It is clear to me that the references to accessory do not contemplate the size of the uses. Nowhere in the Bylaw is there any reference to scope or any proportion limitation relative to area. The use of the structures by contractors for office and retail is the principal use, which means there is a need for storing equipment, materials and supplies. In addition these types of businesses need areas to park their vehicles which in certain instances are larger vehicles that employees do not take home but park overnight therefore there needs to be large garages to house those vehicles. The fact that the principal businesses, like Dan Gill's landscaping and site company, need large areas to store their equipment and materials is simply incidental to their business and by no means is his principal occupation. At no point does Danny Gill (applicant) intend to lease out the garage spaces for storage only. In fact, his business will occupy a substantial portion of the space for his own business including the entirety of the second accessory structure. Sincerely, Jean Enright Assistant Director 1 Enright, Jean From: Enright, Jean Sent: Thursday, December 24, 2015 8:16 AM To: Brown, Gerald Cc: Kfoury, Eric Subject: FW: 2302 Turnpike Site Plan Review Application Attachments: RE: Earth Works - 2302 Hi Jerry, Tom Urbelis is deferring to you on this. Could you please read below and advise as to whether you still belief that the proposed Use for this parcel is allowed. I have attached your previous email.Thank you Sincerely, Jean Enright Assistant Director Community and Economic Development Town of North Andover - 1600 Osgood Street,Suite 2035 North Andover,MA 01845 Phone 978.688.9533 Fax 978.688.9542 Email: ienriRht townofnorthandover.com Web: www.TownofNorthAndover.com From: Thomas Urbelis [mailto:tju@uf-law.com] Sent: Wednesday, December 23, 2015 3:18 PM To: Enright, Jean Cc: Kfoury, Eric; Brown, Gerald Subject: RE: 2302 Turnpike Site Plan Review Application Jean.......I have reviewed the materials.The bylaw does not provide a precise description or numerical calculation as to the Primary Use and Accessory Use here. Since Gerry is the person who is designated by 10.1 of the Zoning Bylaw as the enforcement agent, his opinion is entitled to deference. In my view, while there may be a question about the proposed use, I do not believe that his opinion is arbitrary, capricious or without any basis. Tom 1 Enright, Jean From: Brown, Gerald Sent: Monday,January 04, 2016 1:50 PM To: Enright,Jean Subject: RE: 2302 Turnpike Site Plan Review Application Hi Jean Re 3202 Turnpike The use as is allowed 4.127, .4 Business and other offices and 8.3 Site Plan Approval is required Special Permit From: Enright, Jean Sent: Monday, January 04, 2016 11:30 AM To: Brown, Gerald Cc: Kfoury, Eric Subject: FW: 2302 Turnpike Site Plan Review Application Hi Jerry, Would you please read below and advise. Thank you Sincerely, Jean Enright Assistant Director Community and Economic Development Town of North Andover 1600 Osgood Street,Suite 2035 North Andover,MA 01845 Phone 978.688,9533 Fax 978.688,9542 Email: lenrighttownofnorthandover.com Web: www.TownofNorthAndover.com 60 From: Enright, Jean Sent: Thursday, December 24, 2015 8:16 AM To: Brown, Gerald Cc: Kfoury, Eric Subject: FW: 2302 Turnpike Site Plan Review Application Hi Jerry, Tom Urbelis is deferring to you on this. Could you please read below and advise as to whether you still belief that the proposed Use for this parcel is allowed. I have attached your previous email.Thank you 1 Sincerely, Jean Enright Assistant Director Community and Economic Development Town of North Andover 1600 Osgood Street,Suite 2035 North Andover,MA 01845 Phone 978.688.9533 Fax 978.688.9542 Email: ienrigh townofnorthandover.com Web: www.TownofNorthAndover.com From: Thomas Urbelis [mailto:t]u uf-law.com] Sent: Wednesday, December 23, 2015 3:18 PM To: Enright, Jean Cc: Kfoury, Eric; Brown, Gerald Subject: RE: 2302 Turnpike Site Plan Review Application Jean.......I have reviewed the materials.The bylaw does not provide a precise description or numerical calculation as to the PrimaryUse and Accessory Use here. Since Gerry is the person who is designated by 10.1 of the Zoning Bylaw as the enforcement agent, hisopinion-is entitled to deference. In my view, while there may be a question about the proposed use, I do not believe that his opinion is arbitrary,capricious or without any basis. Tom From: Enright, Jean [mailto:JEnright@townofnorthandover.com] Sent: Thursday, December 17, 2015 3:27 PM To: Thomas Urbelis Cc: Enright, Jean Subject: 2302 Turnpike Site Plan Review Application Hi Tom, The Planning Board asked that I consult with you to determine if the Use for a proposed project is allowed in the B-2 Zoning District. The applicant has presented the Primary Use as Retail and Office with Accessory Uses of Storage and Parking. Based on the amount of space dedicated on the Site Plan for storage and indoor parking the Board felt that there was a question as to which was the Primary Use—retail/office or storage/parking. Gerald Brown: Attached is an email from Gerry confirming that he believes the proposed Use is allowed. Bylaw Definition: 2.21 Accessory Use or Structure A use or structure subordinate to the principal use of a building on the same lot and serving a purpose customarily incidental to the use of the principal building. 2 MA SOC Filing Number: 201680824850 Date: 4/21/2016 3:43:00 PM i N'), The Commonwealth of Massachusetts Minimum Fee:$soo 0o i# William Francis Galvin 1 _ Secretary of the Commonwealth,Corporations DivisionF i = One Ashburton Place, 17th floor Boston,MA 021 08-15 12 Special Filing Instructions Telephone: (617) 727-9640 3 li l .• �� E i Identification Number: 001220065 I 1.The exact name of the limited liability company is: GILL FAMILY LLC 2a. Location of its principal office: l No. and Street: 23 ASH STREET City or Town: NORTH ANDOVER State: MA Zip: 01845 Country:USA i 2b. Street address of the office in the Commonwealth at which the records will be maintained: No. and Street: 23 ASH STREET J City or Town: NORTH ANDOVER State: MA zip: 01845 Country: USA �g 3.The general character of business, and if the limited liability company is organized to render professional 1' service, the service to be rendered: THE GENERAL CHARACTER OF THE BUSINESS OF THE COMPANY IS TO(I)INVEST IN,DEVE LOP MANAGE MAINTAIN IMPROVE OPERATE LEASE EXCHANGE PURCHASE, SELL,AND i OTHERWISE DEAL WITH AND OWN REAL PROPERTY AND INTERESTS IN REAL PROPERTY, (I 1)ENGAGE IN ANY BUSINESS OR ACTIVITIES RELATED THERETO OR USEFUL IN CONNECTI ON THEREWITH• AND (III) OTHERWISE ENGAGE IN ANY LAWFUL BUSINESS,ACT OR ACTIVI ,l TY FOR WHICH LIMITED LIABILITY COMPANIES MAY BE ORGANIZED UNDER THE ACT. i 3 4.The latest date of dissolution, if specified: i l 5. Name and address of the Resident Agent: !a Name: DANNY GILL No. and Street: 23 ASH STREET City or Town: NORTH ANDOVER State: MA Zip: 01845 Country: USA I, DANNY GILL resident agent of the above limited liability company, consent to my appointment as the resident agent of the above limited liability company pursuant to G. L. Chapter 156C Section 12. 6.The name and business address of each manager, if any: 1 Title Individual Name Address(no PO Box) q i r First,Middle,Last,Suffix Address,City or Town,State,Zip Code g i MANAGER DANNY GILL ' 1 i 23 ASH STREET i NORTH ANDOVER,MA 01845 USA I it i 7.The name and business address of the person(s) in addition to the manager(s), authorized to execute is documents to be filed with the Corporations Division, and at least one person shall be named if there are no managers. y Title Individual Name Address (no PO sox) 3 First,Middle,Last,Suffix € Address,City or Town,State,Zip Code � f € j 8.The name and business address of the person(s) authorized to execute, acknowledge, deliver and record any recordable instrument purporting to affect an interest in real property: i € z {a Title Individual Name Address (no PO sox) First,Middle,Last,Suffix Address,City or Town,State,Zip Code € REAL PROPERTY DANNY GILL 23 ASH STREET ? t NORTH ANDOVER,MA 01845 USA � it € 9.Additional matters: 3 s SIGNED UNDER THE PENALTIES OF PERJURY,this 21 Day of April,2016, {"�i t DANNY GILL a (The certificate must be signed by the person forming the LLC.) l ©2001 -2016 Commonwealth of Massachusetts , All Rights Reserved MA SOC Filing Number: 201680824850 Date: 4/21/2016 3:43:00 PM THE COMMONWEALTH OF MASSACHUSETTS I hereby certify that, upon examination of this document, duly submitted to me, it appears that the provisions of the General Laws relative to corporations have been complied with, and I hereby approve said articles; and the filing fee having been paid, said articles are deemed to have been filed with me on: April 21, 2016 03:43 PM WILLIAM FRANCIS GALVIN Secretary of the Commonwealth Ze, 6o17 na1mv eat/z �/f crs��eef eesetts� �//?Ci 6,01i'llnolm"oeCl kV.1 FV � V4 °�o�a ,>+ ��CZ'�'f'/�011eS'P, ✓JO�f'�O/Z .���Q'eS'e4'C1.'C�LL�'('�L�e3' �7��e�eJ William Francis Galvin Secretary of the Commonwealth June 6, 2016 TO WHOM IT MAY CONCERN: I hereby certify that a certificate of organization of a Limited Liability Company was filed in this office by GILL FAMILY LLC in accordance with the provisions of Massachusetts General Laws Chapter 156C on April 21, 2016. 1 further certify that said Limited Liability Company has filed all annual reports due and paid all fees with respect to such reports; that said Limited Liability Company has not filed a certificate of cancellation or withdrawal; and that said Limited Liability Company is in good standing with this office. I also certify that the names of all managers listed in the most recent filing are: DANNY GILL I further certify, the names of all persons authorized to execute documents filed with this office and listed in the most recent filing are: DANNY GILL The names of all persons authorized to act with respect to real property listed in the most recent filing are: DANNY GILL In testimony of which, I have hereunto affixed the Great Seal of the Commonwealth 41 on the date first above written. f; Secretary of the Commonwealth Processed By:KMT 7/5/2015 Town of North Andover Mail-Fwd:2302 Turnpike Street NORTH ANDOVER Massacl)USQtts Rebecca Oldham <roldham@northandoverma.gov> Fwd: 2302 Turnpike Street 1 message Jean Enright <jenright@northandoverma.gov> Tue, Jul 5, 2016 at 11:53 AM To: Rebecca Oldham <roldham@northandoverma.gov> For the file. ---------- Forwarded message ---------- From: Jill Mann <jill@mannpc,corn> Date: Tue, Jul 5, 2016 at 11:51 AM Subject: 2302 Turnpike Street To: Jean Enright <jenright@northandoverrna,gov> Cc: earthworks300@msri.com, Kayla <kayla@earthworksrna.com> Hi Jean: I spoke with Danny and discussed the pending demolition permit (which requires your signoff)to raze the structures located at 2302 Turnpike Street prior to receiving approval for the License Agreement for the ROW from the Board of Selectmen. His work schedule will now expand from prepping the site for bringing in fill to include demolishing the structures, removing the debris and grading and filling the areas outside of the ROW. Danny understands that he is doing so at his own risk and that in the event the Board of Selectmen were to refuse to authorize the license that he would need to return to the Planning Board for a modification of his decision. Danny acknowledges that he is not being granted any authority to work within the ROW, with the exception of using a portion of it to enter the site. Thank you, Jill Jill Elmstrom Mann MANN&MANN,P.C. COUNSELLORS AT LAW 191 SOUTH MAIN STREET MIDDLETON,MA 01949 TEL: 978-762-6238 FAX: 078-762-6434 This transmittal and/or attachments may be a confidential attorney-client communication or may otherwise be privileged https://mail.googl e.com/mail/?ui=2&i k=ab4f3eb798&view=pt&search=i nbox&th=155bbc480dd8e75a&si m l=155bbc480dd8e75a 1/2 7/5/201e Town of North Andover Mail-Fwd:2302 Turnpike Street or confidential. If you are not the intended recipient, you are hereby notified that you have received this transmittal in error; any review, dissemination, distribution or copying of this transmittal is strictly prohibited. If you have received this transmittal and/or attachments in error, please notify us immediately by reply or by telephone (call us collect at 978-762 6238)and immediately delete this message and all its attachments. Sincerely, Jean Enright Assistant Director Community and Economic Development Town of North Andover 1600 Osgood Street,Suite 2035 North Andover,MA 01845 Phone 978.688.9533 Fax 978.688.9542 Email: jenright@towncfnorthandover.co Web: wjvw.TownofNorthAndover.com cid:image001.jpg(1 j i I i https://mail.google.com/mail/?ui=2&i k=ab4f3cb798&view=pt&search=i nbox&th=155bbc480dd8e75a&sim l=155bbc480dd8e75a 2/2