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HomeMy WebLinkAbout1997-03-04 Legal Document DAvis, HALM & D'AcOSTINE A PwnssioNAL CoRPoRATioN ONE BOSTON PLACE BOSTON,MAssAcivunm 02108-4470 TELEPHONE:(617)367-2500 TELECOPIER.(617)523-6215 Julian J.D'Agostine Alan L.Stanzier Robert J.Diettrich Writer's Direct Dial: (617)589-3829 C.Michael Maim Robert J.Galvin J.Gavin Cockfield DirectTelecopier.(617)305-3129 William F.Griffin,Jr. John D.Chambliss Andrew D.Myers Paul E.Levenson Carol R.Cohen Amy L.Fracassim' email:hspeiclier Gichnellaw.com Robert C.Gerrard Howard P.Speicher Pamela B.Fleming" John G.Serino Paul L.Feldman G.Robert Schwandt John R.Berman Gary M.Feldman Ann M.Sobolcwski Gary S.Matsko George A.Hewett Ingrid C.Schroffner Judith Ashton Thomas S.Fitzpatrick John T.Lynch Harold R.Davis, of Counsel admitted in New Hampshire only admitted in Connecticut only August 7, 1998 VIA OVERNIGHT MAIL Ms. Mary Ippolito ry Board of Appeals North Andover Municipal Building 120 Main Street f"L IN���Xl North Andover, MA 0 1845 ...... Re: James J. Nassar, Jr. Appeal to Board of Annear of decision of Building Commissioner dated June 15, 1998 Dear Ms. Ippolito: Enclosed please find five copies of Memorandum in Support of Appeal of James J. Nassar, Jr., with attachments, in connection with the appeal to be heard by the Board of Appeals on Tuesday, August 11, 1998. Please see that the members of the Board receive the Memorandum prior to the hearing. Thank you for your cooperation in this matter. Very truly yours, eoe�05;�� Howard P. Speicher cc: James J, Nassar, Jr. J:\SPEICI]rR\NASSAR\IPPOLITO.LTI 1 TOWN OF NORTH ANDOVER I BOARD OF APPEALS APPEAL OF JAMES J. NASSAR, JR. MEMORANDUM IN SUPPORT OF APPEAL OF JAMES J. NASSAR, JR. This is an appeal by James J. Nassar, Jr.,the owner of the property at 478 Chickering Road, of a decision of the Town of North Andover Building Commissioner, D. Robert Nicetta regarding Mr. Nassar's request for enforcement of the Town of North Andover Zoning By-law(the `By-law") with respect to construction taking place on property abutting Mr. Nassar's property, at the property known as 490 Main Street and 476 Chickering Road, owned by Salvatore Lupoli (the "Lupoli property"). Mr.Nassar made his request for enforcement to the building commissioner by a letter from his attorney dated May 13, 1998. A copy of the letter of May 13, 1998 is attached hereto as Exhibit A. A copy of the building commissioner's response, dated June 15, 1998, denying the request for enforcement, is attached hereto as Exhibit B. By a decision dated March 4, 1997, the Planning Board granted site plan approval for the construction of a "one story, 2300 square foot building" on the Lupoli property. A copy of the decision of the Planning Board is attached hereto as Exhibit C. By a decision dated March 20, 1997, the Board of Appeals granted variances to Mr. Lupoli from various provisions of the By-law, including front, side and rear setbacks. A copy of the Board of Appeals' decision is attached hereto as Exhibit D. The building being constructed on the Lupoli property is being constructed in violation of the approved site plan approved by the Planning Board and in violation of the variances approved by the Board of Appeals. In particular, the approved site plan (see copy attached hereto as Exhibit E)shows the building, which is described as a one story building,five feet from the property line of Mr. Nassar's property on the Chickering Road (Route 125) side of the Lupoli property. The Board of Appeals decision allows the building to be as close as 5.1 feet to the Nassar property line. The Board of Appeals decision also grants a variance to allow the building to have a side yard setback of twenty feet. The building as constructed, violates the approved site plan as follows: (1) The approved site plan does not permit a two story building; as constructed, the building is a two story building, complete with dormers on the second floor. (2) The approved site plan shows roof overhangs on the building on three sides of the building, but not on the side facing the Nassar property. As constructed there is not only an overhang, but a second floor of the building that extends for five feet from the wall of the building,to within two and one half feet of the Nassar property line. (3) The approved site plan shows an employee parking space on the Nassar property side of the building. As constructed, there is a stairway, not shown on the site plan, in the same location. Changes to a site plan that have the effect of moving a building closer to an abutter's property or making structural changes to the exterior of the building cannot be considered minor or be approved at the staff level. Such changes to an approved site plan require approval by the Planning Board. Chambers v. Building Inspector of Peabody, 40 Mass. App. Ct. 762 (1996). The building, as constructed, violates the By-law, by exceeding the dimensional variances granted by the Board of Appeals, as follows: (1) In the General Business District, in which the Lupoli property is located, the required rear yard setback is 35 feet. The Board of Appeals granted a variance allowing the building to come as close as 5.1 feet from the rear property line facing the Nassar property. As constructed,the building comes within two feet six inches of the Nassar property line,twice as close as allowed by the Board, and virtually eliminating the setback requirement altogether. The building commissioner,while not disputing the distance from the lot line of the building, argued in his decision that the encroachments were an eave and uncovered stairs, both of which are exempt from the setback requirements of the By-law. However, the encroaching portion of the building is not merely an eave. It is an extended second floor of the building. An "eave" is "the overhanging lower edge of a roof'. Merriam Webster Dictionary, Merriam Webster,Inc., 1995. The encroaching portion of the building, defended by the building commissioner as an"eave", extends, from the bottom of the encroachment to the top of the dormer, approximately twelve feet. It is not by an credible definition just an"eave". The extended portion of the building also cannot lawfully be considered and eave, and therefore exempt from the setback provisions of the By-law, because it does not qualify as an"eave" under the provisions of the State Building Code. Section 1213.4 of the State Building Code, governing construction of buildings, provides, "Roof eaves shall not project more than three feet (914 mm) beyond the face of the wall." Section 3203.3 of the State Building Code, governing permissible projections beyond the building line, provides, "Main cornices or roof eaves located at least 12 feet(3658 mm) above the curb level shall not project more than three feet(914 mm)." The extended second floor of the building extends five feet from the wall of the building, two feet more that allowed for eaves under the State Building Code. The extended second floor projection of the building, therefore, cannot take advantage of the exemption for eaves, because it is not an eave, and because even if it was an eave, it projects farther than is permissible under the State Building Code. There is no separate definition of"eave" in the By-law that would permit a different result. (2) The building as constructed, and even as shown on the approved site plan,violates the side yard setback as authorized by the variance granted by the Board of Appeals. The required side yard setback in the General Business District is 25 feet. The Board of Appeals, by variance, authorized a reduction in the side yard setback to 20 feet. The building, as shown on the approved site plan, is only 8.3 feet from the Main Street side of the Lupoli property. If that side of the building is to be considered the front,then the building still violates the 17 foot front setback granted by the Board. The building as constructed is at least as close as is shown on the approved site plan. ............. .......... (3) The building, as constructed,violates the off-street Parking variance granted by the Board. The Board determined that the proposed building, which was represented to be 2300 square feet, required a 35 off-street parking spaces. However, Section 8.2 of the By-law requires one parking space for every two seats in a restaurant or 15 spaces for each one thousand square feet of gross floor area, whichever is greater, for a requirement of 45 parking spaces, not 35, for the proposed 2300 square foot building. In fact, however,the requirement may be even greater, since the Board based its grant of variance on the representation that the building would be only one story, and owner of the Lupoli has built a two story building,as much as doubling the gross floor area of the building and thereby increasing the parking requirement and exceeding the terms of the variance. CONCLUSION For the reasons stated above, the decision of the building commissioner should be annulled, and the building commissioner should be ordered to require the correction of the violations, and should be further ordered to order the owner of the Lupoli property that work may not proceed other than to correct the violations by removing the portions of the building that exceed the granted variances and the site plan approval,and that no occupancy permit will be issued until the violations are corrected. JAMES J. NASSAR, JR., By his attorney, Howard P. Speic r, BBO#474380 Davis, Mahn & D'Agostine, P.C. One Boston Place, 37th Floor Boston, Massachusetts 02108-4470 617-367-2500 Dated: August 7, 1998 I 1 11E1,J L... .'s�r : :�iJ DAVIs, MALM & UAGOSTINE jOYCE BRAD HAW A Px MSIONAL Co"ORA oN TOWN CLERK ONE BosroN Pt,nca NORTH Ah00YER BosmN,M,►ssacmem 02108-4470 (, TestoNr_-(617)367-2500 J U L 14 9 5 <y Te..F. pmpu (617)523-6215 Julian J.D`Agostine Alan L.Stanzler Robert J.Diettrich Writer's Direct Dial: (617)599-3829 C.Michael Malm Robert J.Galvin J.Gavin Cockfield Direct Telecopier:(617)305-3129 William F.Griffin,Jr. John D.Chambliss Andrew D.Myers email:hspeicher@dmdlaw.com Paul E,Levenson Carol R.Cohen G.Robert Schwandt Robert C.Gerrard Howard P.Speicher Ann M.Sobolewski John G.Serino Paul L.Feldman Ingrid C.Schrotfncr John R.Berman Kevin F.Long Gary S.Matsko Gary M.Feldman Harold R.Davis, Judith Ashton George A.Hewett orcounsel John T.Lynch Thomas S.Fitzpatrick May 13, 1998 CERTIFIED MAIL, RETURN RECEIPT REQUESTED D. Robert Nicetta, Building Inspector North Andover Municipal Building 120 Main Street North Andover, MA 01845 Re: 490 Main Street/476 Chickeri,ng„Road.North Andover Dear Building Inspector Nicetta: This office represents James J.Nassar, Jr. Mr.Nassar is the owner of the property abutting the property of Salvatore Lupoli at 490 Main Street/476 Chickering Road. This letter is a request for enforcement of the North Andover Zoning By-law pursuant to Massachusetts General Laws chapter 40A, section 7. In accordance with section 7, you are required to respond to this request in writing within fourteen days of receipt. The building now under construction on Mr. Lupoli's property is being constructed in violation of the requirements of the variances granted by the Board of Appeals by decisions dated November 26, 1996 and March 20, 1997, in violation of the site plan approval granted by the Planning Board by decision dated March 4, 1997 and in violation of the provisions of the Zoning By-law. Specific violations include the following: 1. There is an overhanging eave on the side of the building facing Mr. Nassar's and another overhanging eave on the Main Street side of the building, both of which are not shown on the plans approved by the Planning Board as part of the site plan review process or on the plans approved by the Board of Appeals in connection with the variance granted to the owner. D. Robert Nicetta, Building Inspector May 13, 1998 Page 2 2. There is an extension of the foundation on the side of the building facing Mr. Nassar's building that is not shown on the plans approved by the Planning Board as part of the site plan review process or on the plans approved by the Board of Appeals in connection with the variance granted to the owner. 3. The building, by the extension of the second floor facilitated by the unapproved eave on the east side of the building,encroaches further into the required setback than permitted by the variance granted by the Board of Appeals. 4. The unapproved extension of the foundation into the required setback violates the variance granted by the Board of Appeals and violates the dimensional requirements of the Zoning By-law. We hereby request in accordance with Massachusetts General Laws chapter 40A, section 7, that you enforce the variances, site plan approval and Zoning By-law by issuing a stop-work order to Mr. Lupoli and instructing him that work may not proceed other than to correct the violations, and that if the violations are not corrected, informing him that no occupancy permit will be granted and that you will bring an appropriate legat action to have the violations removed. We Iook forward to your response within the statutorily required fourteen day period. Very truly yours, Howard P. peicher cc: James J. Nassar, Jr. J:%SPEICHERWASSARW ICETTP.LT1 Town of North Andover i = yf`N OT�0 /V F Ooe r�byFR C OF fCOMMUNITY DEVELOPMENT AND SERVCE9L °146 Main Street n North Andover, Massachusetts 01845 ` { WILLIAM J. SCOTT �SSA'Hus Director June 15, 1998 Davis, Maim & D'Agostine Howard P. Speicher, Bsq One Boston Place Boston MA 02108-4470 Re: 490 Main Street 1476 Chickering Rd Dear Mr, Speicher: I am responding to your letter of May 13, 1998 requesting that I issue a stop work order for the on going construction of a building at 490 Main Street/476 Chickering Road. You have made your request pursuant to G.L. 40A Sec. 7. For reasons described below, I am declining to issue a stop work order. Your letter describes certain alleged zoning violations based on your assumption that overhang eave(s) on the Main Street side and in the side of the building facing Mr. Nassar's property encroaches further into the required setback and violates the dimensional requirements of the Zoning By-law. In fact, Section 7.3 -yard setbacks states that minimum front, side, and rear setbacks shall be set forth in Table 2, except for naves and uncovered steps. As such, no variance was required for eave (s) setback. You also allege that the extension of the foundation one the side of the building facing Mr. Nassar's building was not approved by the Board of Appeals in connection with the variance granted by the Board of Appeals decision on Petition: 006-97, Dated March 20, 1998 which addresses this and all other variances as shown one the site plan and granted by the Board of Appeals. Plans on file in the Planning Department reveal that the building under construction is the same as approved by the site plan review process. if you have any further questions, please call my office. Very truly yours, D. Robert Nicetta, Enclosure Building Commissioner cc: W.J. Scott, Director, C. D. & S BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 ` JL own of North Andover � OFFICE OF _ COMMUNITY DEVELOPMENT AND SERVICES A Coy 146 Main Street ^ North Andover, Massachusetts 01845P WU-LIAM J. SCOTI' S,CkAj Director Tov*,u 0 ,rk NOTICE OF DECISION a- x Q Any appeal shall be filled �' cm within 20 days after the T'NsistocariifyUmt } Y h?VQ elapsed from d08 of doasim M, n 1 date of filling this Notice ;;�;oufri;ngOfan in the Office of the Town Oath Clerk. .; ce .f�radshaw � rn'`v - 1bAn. Clerk Date March 4, 1997 Date of Hearin gq 12/3/96, 12/17/96,1/7/97 1/21/97, 2/18/97 Petition of sal`s Just Pizza ; Premises affected Intersection of Main Street, Park Street, Chickering Road in the G--B Zoning District Referring to the above petition for a special permit from the requirements of the North Andover Zoning Bylaw Section 8.3 SO as to allow to construct a one story, 2300„ SF building to be used as a restaurant at the intersection of Main Street, Park Street, and Chickering Road After a public hearing given on the above date, the Planning Board voted to APPROVE; the Special Permit r;; '. s''' t l' � based upon the following conditions: Signed `�� J CC: Director of Public Works Joseph V. Mahoney, Chairman Building Inspector _ Natural Resource/Land Use Planner Richard Rowen Vice Chairman Health Sanitarian Z Assessors Alison Lescarbeau Clerk Police Chief Fire Chief Richard Nardella G`c Applicant c� Engineer John Simons m File Interested Parties Planning Board BOARi3 OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PL,%NN NG 683-9533 : Town of North Andover µORTH OFFICE OF �2 0 tT ,fl �tiao COMMUNITY DEVELOPMENT .AND SERVICES o . 146 Main Streetjf i --►. ; North Andover, Massachusetts 01845 �,'`;�;,o�:• ��* WILLIAM J.SCOTT �SSACMUS Director March 7, 1997 Ms . Joyce Bradshaw Town Clerk 120 Main Street No . Andover, MA 01845 Re : Site Plan Review/476 Chickering Road (Sal' s Pizza) Dear Ms . Bradshaw, The North Andover Planning Board held a public hearing on Tuesday evening, December 3, 1996 at 7 : 30 p .m. in the Senior Center behind the Town Building, upon the application of Salvatore Lupoli for Sal' s - Just - Pizza, 29 North Broadway, Salem, NH 03079 requesting a special permit under Section 8 . 3 Site Plan Review of the North Andover Zoning Bylaw. The legal notice was properly advertised in the North Andover Citizen on November 13 and November 20, 1996 and all parties of interest were duly notified. The following members were present : Joseph V. Mahoney, Chairman, Richard Rowen, Vice Chairman, Alison Lescarbeau, Clerk, Alberto Angles, Associate Member and John Simons . The petitioner was requesting a special permit to allow for the construction of a ( 1 ) one story 2300 sq. ft . building to be used as a restauraunt at the intersection of Main Street, Park Street and Chickering Road in the General Business District . Ms . Lescarbeau read the legal notice to open the public hearing . Jeffrey Brem the engineer, was present to represent Sal' s Pizza at the intersection of Chickering Road & Main Street . They would like to tear down the existing Sal' s Pizza and the barber shop near the middle school, to construct a new Sal' s Pizza . The building' s combined now have a total of 19 parking spaces and 3, 000 sq. ft . They would like to retain one building to maintain operation . Sal received a variance from the Zoning Board of Appeals . The newly constructed building would be 2, 300 sq. ft . and have 28 parking spaces . There will be catch basins on site currently the storm water simply drains into the street . The 1 BOARD OF APPEALS 688-9541 BLjjLD1N0 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 tt 1}i �";� traffic circulation will be better . They will have a mansard roof, with dormers . The building will have brick face and columns in the front . The entrance will be on Park Street . The sign will be on Rt . 125 . The dumpsite will be screened with the same material as the building . Ms . Lescarbeau stated that the business would now change from mostly the take-out business to having customers sitting in and eating in the building. Mr . Lupoli stated that currently they have about 15-20 seats and will go to the maximum of 56 seats and wanted to separate dining in from take-out . Rosemary Burdett an abutter is concerned about the high level of traffic and about customers that will park on the street in front of their house to get to Sal' s . Ms . Colwell suggested that the one way entrance and exit should be reversed to allow an entrance from Park Street and an exit on Main Street to allow cars to turn onto Rt . 125 at the lights . The Board discussed the possibility of connecting the two lots and eliminating one of the access points on Park Street . Mr . Simons was concerned about what 1-ind of material the building consisted off . Mr . Brem stated that is was made of brick and the roof would have architect 'shingles . The public hearing was continued to the December 17, 1996 meeting . The North Andover Planning Board held a regular meeting on December 17, 1996 . The following members were present : Joseph V. Mahoney, Chairman, Richard Rowen, Vice Chairman, Alison Lescarbeau, Clerk, Richard Nardella and John Simons . Jeff Brem was present representing Sal' s Pizza . Mr . Brem stated that the issue at the last meeting was to change the exit and entrances so that the vehicles would enter on Park Street and they would exit onto Main Street so they would have the lights to make traffic a little better . Mr . Brem agreed to that . Mr. t Mahoney stated that he drove by the Salem, NH Sal' s Pizza to see how the building. was set up . Mr . Mahoney thought that looked very nice . Mr . Mahoney questioned why they could not connect the two parking lots . 2 F ! P U I Mr . Nardella asked where the sign was going to be put and where the dumpster was going to. be put . Mr . Brem stated that the sign is going to be put in the parking lot on Main Street and the dumpster is going to be put behind the building were it is now . Mr . Nardella had concerns about the parking and the number of seats in the building. Mr . Brem stated that they have 28 parking spaces and that makes about 56 seats inside for customers . Ms . Lescarbeau asked what the dimensions of the building were going to be. Mr . Brem stated that they were 46' x 50' Mr. Rowen suggested that they extend the sidewalk out to the. street and that they need to landscape on the Main Street side . Mr . Nardella asked what kind of use the basement would have . Mr . Brem stated that it would only be used for storage . Mr . Simons asked what color and what style of brick was going to be used on the building. Mr . Brem stated that it was going to be red, square brick. On a motion by Mr . Rowen, seconded by Ms . Lescarbeau th.e Board voted unanimously to close the Public Hearing . The North Andover Planning Board held a regular meeting on January 7, 1997 . The following members were present : Joseph V. Mahoney, Chairman, Richard Rowen, Vice Chairman, Alison Lescarbeau, Clerk, Alberto Angles, Associate Member and Richard Nardella, John Simons, Kathleen Bradley Colwell, Town Planner was also present . ; Ms . Colwell stated that the plan must be revised to eliminate parking spaces currently in the right of way of Park and Main Streets . The parking lot entrance and exit must be reversed to allow an entrance on Park Street and an exit on Main Street . A test pit must also be dug in the location of the drywell to determine groundwater level . Mr. Simon stated that he is against the project and that the building does not have the right orientation . It should relate to the adjacent building as it is a highly visible corner in town . On a motion by Mr . Rowen, seconded by Ms . Lescarbeau, the Board voted as follows : Mr . Rowen yes Mr . Nardella no Mr . Mahoney yes Ms . Lescarbeau yes 3 f• F Mr . Simon no Mr. Angles did not vote as he is an associate member and the full Board was present . Mr. Nardella was concerned about traffic and the two parking lots . They should be connected. As a special permit for site plan review requires a vote of four members the motion to approve the special permit failed . The North Andover Planning Board held a regular meeting on January 21, 1997 . The following members were present : Joseph V. Mahoney, Chairman, Richard Rowen, Vice Chairman, Alberto Angles, Associate Member, Richard Nardella, John Simons and Kathleen Bradley Colwell, Town Planner was also present . Mr. Nardella stated that after the denial at the last meeting Ms . Colwell got Mr. Nardella, Mr. Scott and Sal together to discuss the outstanding issues . Mr. Nardella stated that they were not aware that some town officials had reviewed the plans that the Board denied. Mr . Lupoli brought 2 new plans better than the old one . On one plan Mr . Lupoli showed combined entrance ways to have one access way but with less parking spaces . On the second plan Mr. Lupoli stated that they might have some problems with the engineering with this plan and was not in favor of this plan . Mr. Simon asked if there were any changes to the outside of the building. Mr . Lupoli stated that there were no changes . On a motion as a dissenting member by Mr. Nardella, seconded by ' Mr. Rowen the Board voted unanimously to reconsider the previous vote . Ms . Colwell suggested that they put an entrance on the street the building is facing. ' Mr. Nardella thought that the building would be better served with wooden columns . Mr. Lupoli stated that would be no problem. Mr . Nardella stated that they would need to landscape the property. Ms . Colwell stated that they would need a set of revised plans and come back before the Board and Ms . Colwell will have a draft decision available . Ms . Colwell stated that to reopen a public hearing we need to put a legal notice in the paper . 4 WF Mr . Rowen stated that he would like to see a revised plan with the landscape and trees . . The Board continued their discussion to the next meeting when plans will be available for review. The North Andover Planning Board held a regular meeting on February 18, 1997 . The following members were present : Joseph V. Mahoney, Chairman, Alison Lescarbeau, Clerk, Richard Rowen, Vice Chairman, Richard Nardella and John Simons . Sal Lupoli was present representing Sal' s Pizza . At the last meeting there are some changes that some members of the Board wanted Mr . Lupoli to make . He changed columns from brick to wood. He also faced the building on Main Street to accent the store . There is a sidewalk that comes out onto Main Street with picnic tables out front . There is going to be a dumpster on the side of the building enclosed with a brick wall . There are going to be wood signs with lights facing them to accent the building. Mr. Simons stated that he thought the planned signage was an overkill . Mr . Nardella stated that as long as it is in accordance with the Bylaw he has no problem. Mr. Simons suggested that the 3 parts on the sign should be combined and it will pull i.t ' in together . Mr . Simons also stated that he would like to see a picture of the light fixtures . Mr . Nardella expressed the thought that construction during the school' s summer vacation would be helpful, and it would not. affect the nearby Middle School . Mr. Lupoli stated that he was planning on putting up a fence around the property during construction to keep children from getting injured. On a motion by Mr . Nardella, seconded by Ms . Lescarbeau the Board voted unanimously to close the Public Hearing . The Board instructed Ms . Colwell to have a draft decision for the next meeting . The North Andover Planning Board held a regular meeting on March 4, 1997 . The following members were present : Joseph V . Mahoney, Chairman, Richard Rowen, Vice Chairman and Alberto Angles, Associate Member . Alison Lescarbeau, Clerk and John Simons . Kathleen Bradley Colwell, Town Planner was also present . 5 .. 6..E �4 f..: F •j rqE SJ Sal' s Pizza - site plan review The Board continued its discussion of the decision. Sal Lupoli was present to represent Sal' s Pizza . Sal spoke- with Bob Nicetta, building inspector, about bringing the wording on the signs closer together so it would not look like 9 signs but 3 . At the last meeting Mr. Simons stated that he would like to know what kind of lights they will be using and Mr . Lupoli stated that they were bronze colonial light fixtures . Ms . Colwell received a letter from Chief Dolan stating that the dumpster had to be moved because there is so much paper waste be disposed of and it would be a fire hazard. Mr. Lupoli stated that he had a couple of ideas for the trash disposals . Mr . Lupoli stated that he could get (2) 60 gallon tote barrels and .put them out every morning and have waste management pick it up every day or they could move the dumpster to another spot . The Board agreed that Ms . Colwell can work . out the trash issue with Mr . Lupoli and the Fire Chief . On a motion by Mr. Simons, seconded by Mr . Rowen the Board voted unanimously to reconsider its decision . On a motion by Mr. Simons, seconded by Mr. Rowen the Board voted unanimously approve the Site Plan Review as amended. Attached are the conditions . Sincerely, `pt Joseph V. Mahone Chairmi n Y� North Andover Planning Board 6 - .-------------_-- - - `r i 7 17 476 Chickering Road (Sal's Just Pizza) Site Plan Review- Special Permit The Planning Board herein approves the Special Permit/Site Plan Review for the construction of a 2,350 SF commercial building located in the General Business Zoning District at the intersection of Maim Street, Park Street and Chickering Road. This Special Permit was requested by Salvatore Lupoli for Sal's Just Pizza, 29 N.Broadway, Salem, NH 03079 on November 5, 1996. The Planning Board makes the following findings as required by the Zoning Bylaw Section 8.3 and 10.3 FINDINGS OF FACT: 1. The specific site is an appropriate location for the project as itis located on land that is zoned for business and will replace an existing commercial structure. 2. The use, as developed, will not adversely affect the neighborhood as there is an existing commercial structure on the site. 3_ There will be no nuisance or serious hazard to vehicles or pedestrians as there is a reduction in the number of curb cuts and the traffic will be directed through the parking lot via two entrances. 4. The landscaping plan approved as a part of this plan meets the requirements of Section 8.4 of the Zoning Bylaw with review by the Planning Board as varied by the Zoning Board of Appeals; 5. The site drainage system is designed in accordance with the Town Bylaw requirements subject to the conditions of this decision; 6. The applicant has met the requirements of the Town for Site Plan Review as stated in Section 8,3 of the Zoning Bylaw; 7. Adequate and appropriate facilities will be provided for the proper operation of the proposed use, Finally, the Planning Board finds that this project generally complies with the Town of North Andover Zoning Bylaw requirements as listed in Section 8.35 but requires conditions in order to be fully in compliance. The Planning Board hereby grants an approval to the applicant provided the following conditions are met: SPECIAL CONDITIONS: 1. Prior to any work on site, the applicant shall adhere to the following: a) The applicant must receive a variance from the Zoning Board of Appeals authorizing construction of the site plan. b) The final plan must be reviewed and approved by the drainage consultant, DPW and 1 IRE 8 the Town Planner and subsequently endorsed by the Planning Board. The final plans must be submitted for review within ninety days of filing the decision with the Town Clerk. c) The following issues must be resolved to the satisfaction of the drainage consultant, DPW and the Town Planner prior to the endorsement of the plan: i) The extent of grass and pavement must be clarified on the existing conditions plan. ii) The percent lot coverage value must be included on sheet 2 of 6 under General Notes. iii) Electric, telephone and cable t.v, etc, must be placed underground. iv) A dry well must be added to the plans to contain the roof drain storm water. A test pit must be dug at the dry well location to assure adequate soils exist and that sufficient clearance to ground water is available. (Dd) Details of the proposed lighting must be submitted for review and approval by the Planning Board. The dumpster must be relocated on the plan per requirement of the Fire Chief and reviewed and approved by the Town Planner. If the applicant chooses to use garbage cans in lieu of a dumpster the location must be shown on the plan and reviewed and approved by the Town Planner. fl The sign lettering must be condensed in the middle of each sign and reviewed and approved by the Town Planner. A bond in the amount of ten thousand ($10,000) dollars shall be posted for the purpose of insuring that a final as-built plan showing the location of all on-site utilities, structures, curb cuts, parking spaces and drainage facilities is submitted. The bond is also in place to insure that the site is constructed in accordance with the approved plan. This bond shall be in the form of a check made out to the Town of North Andover. This check will then be deposited into an interest bearing escrow account. 0h) A construction schedule shall be submitted to the Planning Staff for the purpose of tracking the construction and informing the public of anticipated activities on the site. 2. The hours for construction must be limited to between the hours of 7:00 a.m. and 7:00 p.m.. Trucking of supplies and the use of heavy of equipment must also be restricted to these hours. Sunday and Holiday construction will not be permitted. These conditions are necessary due to the close proximity of the residential homes. 3. Prior to FORM U verification (Building Permit Issuance): �0 Three(3) copies of the signed site plans must be delivered to the Planning Department. 2 -------------- ) This decision shall be recorded at the Essex North Registry of Deeds and a certified copy of the decision delivered to the Planning Staff. 4. Prior to verification of the Certificate of Occupancy: a) The applicant must submit a letter from the architect or engineer of the project stating that the building, signs, landscaping, lighting and site layout substantially comply with the plans referenced at the end of this decision as endorsed by the Planning Board. b) All artificial lighting used to illuminate the site shall be approved by the Planning Staff. All lighting shall have underground wiring and shall be so arranged that all direct rays from such lighting falls entirely within the site and shall be shielded or recessed so as not to shine upon abutting properties or streets. The site shall be reviewed by the Planning Staff. Any changes to the approved fighting plan as may be reasonably required by the Planning Staff shall be made at the owner's expense. c) The building must have commercial fire sprinklers installed in accordance with the North Andover Fire Department. 5. Prior to the final release of security: a) The site shall be reviewed by the Planning Staff. Any screening as may be reasonably required by the Planning Staff will be added at the applicant's expense. b) A final as-built plan showing the location of all on- site utilities, structures, curb cuts, parking spaces and drainage facilities must be submitted to and reviewed by the Planning Staff and the Division of Public Works. 6. Any stockpiling of materials (dirt, wood, construction material, etc.) must be shown on a plan and reviewed and approved by the Planning Staff. Any approved piles must remain covered at all times to min�e any dust problems that may occur with adjacent properties. Any stock piles to remain for longer than one week must be fenced off and covered. 7. Any plants, trees or shrubs that have been incorporated into the Landscape Plan approved in this decision that die within one year from the date of planting shall be replaced by the owner. 8. The contractor shall contact Dig Safe at least 72 hours prior to commencing any excavation. 9. Gas, Telephone, Cable and Electric utilities shall be installed as specified by the respective utility companies. 10. All catch basins shall be protected and maintained during construction with hay bales to prevent siltation into the drain lines. 11. No open burning shall be done except as is permitted during burning season under the Fire Department regulations. 12. No underground fuel storage shall be installed except as may be allowed by Town Regulations. 3 � i 13. The provisions of this conditional approval shall apply to and be binding upon the applicant, its L employees and all successors and assigns in interest or control. 14. Any action by a Town Board, Commission, or Department which requires changes in the plan or design of the building as presented to the Planning Board, may be subject to modification by the Planning Board. 15. Any revisions shall be submitted to the Town Planner for review. If these revisions are deemed substantial, the applicant must submit revised plans to the Planning Board for approval. 16. This Special Permit approval shall be deemed-to have lapsed after (two years from the date permit granted) unless substantial use or construction has commenced. Substantial use or construction will be determined by a majority vote of the Planning Board, 17. The following information shall be deemed part of the decision: a) Plan entitled: Site Plan Set Sal's Just Pizza North Andover,Massachusetts Prepared for: Double N Inc. 29 North Broadway Salem,NH 03079 Dated: October 18, 1996, rev.January 28, 1997, February 11, 1997 Scale: 1"= 10' Prepared by; Meisner Brem Corporation 151 Main Street, Salem),NH 03079 Plan entitled: Preliminary Building Design Sal's N. Andover, MA Scale: 118"= V ' Date: 8 November 1996,Revised 26 November 1996, 15 February 1997 Prepared by: Warnick Associates, Inc. 163 Main Street Salem New Hampshire, 03079 Report entitled: Sal's Just Pizza N. Andover, Massachusetts Site Plan Application Report Date: October 23,1996 Prepared for: Double N Inc.. 29 North Broadway Salem,NH 03079 ' Prepared by: Meisner Brem Corporation 151 Main Street Salem,NH 03079 cc: Director of Public Works 4 71 Building inspector Health Administrator Assessors Conservation Administrator Planning Board Police Chief Fire Chief Applicant Engineer File 476 Chickering Road-Site Plan Review s 5 RECEIVED JOYCE BRADSHAW TOWN CLERK NORTH ANDOVER �:�, .'• h MAR 20 12 3o PH '97 . i S J.tC HV SE t TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS NOTrCE of DECISION Any Appeal shall be filed within (20) days after the data of filing this notice in the office of the To Clerk Qroperty : 490 Main Street Date : March 20, 1997 i Salvatore Lupoli petiti.on : 006-97 476 Chickering Road pate of Hearin : 3/11/97 ! uort:h Andover MA 01845 on Tuesday evening, Ma=c ":-:e Board oz App eals held regular meeting oli requesting a Var.a:•Ce 99 7 Leon the petition of Salvatore LuP - rJ �� � on 7 , paragraph 7 . 1, 7 . 3, and Section 8 , paracraph 8 . '_ , unce- Se- 1, seeking relief from the reauireG And Tao. e 2 of the Zoning g spaces and size of parking spaces anc In requirements . The Y�me�s;on, number of parking P e and Vhenz'o, re� ief from the Screening and LandJ�hP pallone, YTS me.nbbers were present and voting : Ellen McIntyre . Scozz :carpinski, Joseph Faris, ;, n was advertised in the L 9 ular mai? Lawrence Eagle Tribune on Eebr �a=y 2�e ea Y_Mach 3 , 1997 all abutter were notified by re UMcn a motion by, Raymond Vivenzio seconded by Scott Karpinski zzc ' >>czed to Grant the Variance as follows : _ ReoLired area relief of 10, 667 square feet . -C_ont setback relief of 17 feet 2 ; • :) Side setback relief °f 20 feet . parking spaces a c 4 Rear setback relief of 5 . 1 Teets aces.. to 27 p Parking relief from 35 par�incg P of S4 plSnned seating in the Pizzdrovide car°<-nc: seating capacity ar.iCi it size to p- . Y aark_fnc sizes relief from 10 x20 p g s_ze space of 9 xl width relief from 25 feet to 20 feet of 6 Leer to a Screening and Landscaping minimum requirement r ice of 0 to 6 feet and a relief from the required z "2e c?anting to 8 tree planting . member were : RaymElleniMcIntyreJohn gallone, Scott Carpins c_ , 3oseph Earns l Petitioner has satisfied the provisions of Section 10, Paragraph 10 . 4 of the Zoning Bylaw and that the granting of these variances will not adversely affect the neighborhood or derogate from the intent and purpose of the Zoning By law . Note : The granting of the Variance and/or Special Permit as .requested by the applicant does not necessarily ensure the granting of a Building permit as the applicant must abide by all applicable local. , state 'and fedeiAi building codes and regulations , prior to the issuance 'of a building permit as required by the Building Commissioner. c �� William Sull"ivan, Ch Erman r • s