HomeMy WebLinkAboutMemo in Support of Appeal - Correspondence - 34 Wentworth Avenue 11/11/2021 E
I.
MOLAK..& V AUGHAN _�jl Stephanie.A. Kiefer, Esq.
T: 978-582 -5220 1 F: 978-327-5219
ATTORNEYS AT L A W skiefer@smolakvaughan.com
November 11 2021
Via Hand Delivery
I
Dawne Warren, Town Clerk
North Andover Town Hall
120 Main Street
North Andover, MA 01845
RE: 34 Wentworth Avenue, North Andover, MA
Map 067, Lot 002
Applicant: Jonathan Grasso
Owners; Patrick LaFrance, Trustee
NOTICE OF APPEAL FROM BUILDING INSPECTOR
DENIAL DECISION DATED OCTOBER 14 202i
Dear Ms. Warren:
Please be advised that this office represents Jonathan Grasso ("Grasso" or "Applicant"),
with respect to the Applicant's request for a building permit to construct a single-family dwelling
at 34 Wentworth Avenue, North Andover, MA (the"Property"), and the written permit denial by
the North Andover Building Inspector, dated October 14, 2021. On behalf of the Applicant, we
timely submit this Notice of Appeal in accordance with M.G.L. c.40A, §15 and the North
Andover Zoning Bylaw, Chapter 195, §195-10.8.B, appealing from the October 14, 2021 denial
by the Building Inspector to issue a building permit and his determination that variances of both
side yards, as well as fi•ontage and lot size are required]. A copy of the Building Inspector's
Denial is attached hereto as Exhibit A.
For the reasons stated herein, the Applicant appeals from the Building Inspector's denial
of a building permit and his determination that the Applicant's proposed single-family dwelling
requires variance relief of both side yards, frontage and lot size, as stated in the Building
Inspector's written denial.
Per the Building Inspector's written decision,he indicated that a left side setback variance of 2.8',a right side
setback variance of 2.7',a fi-ontage variance of 52.5' and a lot size variance of 7,953 square feet would be required.
(00210920;v1)
.. ................ ............
. ................
I
Dawne Warren, Town Clerk
Town of North Andover
November 11, 2021
( Page 2
MEMO IN SUPPORT OF APPEAL
I. Description of Applicant's Proposed Single Family Dwelling
Through his building permit application received by the Building Inspector on October
14, 2021, the Applicant proposed to construct a two-story single family home on the Property, 34
Wentworth Avenue. The Property is currently an undeveloped parcel. The footprint of the
dwelling measures 23'x35' and the total height is 26'. The front and rear yard setbacks are 30.V
and 30', respectively. The side yard setbacks would be 12.2' on the right side and 12.3' on the
left side, as facing the Property from Wentworth Avenue. The total size of the proposed two-
story dwelling is modestly proposed to be 1,610 square feet.
For context, the adjacent property at 30 Wentworth Avenue consists of a similarly-sized
parcel (reported by the property deed to be 4,514 square feet), with similar frontage (47.5'). The
dwelling constructed on 30 Wentworth Street is both closer to Wentworth Avenue, being setback
approximately 21', and is closer to the property boundary with the Property, having a side yard
setback of approximately 11.3'. This adjacent dwelling, while on a similarly-sized lot, includes a
slightly larger footprint (24'x 46' per the Assessor's Records, or 1,104 square feet) that that
proposed by Grasso.
I1. The Property's Status as a Preexisting Lot and Subject to Zoning Exceptions Under
the North Andover Zoning Bylaw
A. The 34 Wenhvorth Avenue Property Was Created by Virtue of a 1906 Lot Plan
As more fully described within the Statement in Support of Issuance of a Building Permit
As of Right provided to the Building Inspector as part of Applicant's building permit application
package, the 34 Wentworth Avenue Property was created by virtue of a lot layout plan entitled
"Highland View Park," dated March 1906, prepared by R.W. Seamens, Civil Engineer. The
"Highland View Park" plan was recorded at the Essex North Registry of Deeds on May 6, 1906,
in Book 230, Page 600. A copy of the "Highland View Park" was submitted to the Building
Inspector within the Applicant's Statement in Support of Building Permit. This recorded plan
laid out 184 modest lots along Prospect Street, Wentworth Avenue, Highland View Avenue,
Briglatwood Avenue and High Street as those streets are bounded generally to the north by
Chadwick Street and Furber Avenue to the south. The vast majority of the lots created by virtue
of the Highland View Park along Prospect Street, Wentworth Avenue, Highland View Avenue,
Brightwood Avenue were slightly below 5,000 square feet with frontage ranging between 45'-
50'.2 At the time these lots were created, there Town of North Andover had not adopted any
zoning bylaw nor was the Subdivision Control Law in effect or adopted by the Town.
2 Upon information, there are currently twelve(12)lots upon which dwellings have been built within the"Highland
View Park"development which have less than 50'of fi-ontage. Eight(8)of those lots are less than 5,000 square feet
in area,and the other four(4)have been joined with the adjacent lot to the rear.
{00210920;vt}
s
E
Dawne Warren, Town Clerk
Town of North Andover
November 11, 2021
Page 3
E During the course of the past century, many of the Highland View Park lots have been
combined, to create a double or triple sized lot. However, the neighborhood also includes many
of the single Iots that have since been developed with single-family or two-family residential
structures.
The Property has consistently been owned by the LaFrance family for over a century. By
a 1918 deed recorded at the Essex North Registry of Deeds, in Book 395, Page 554, Oliver E.
LaFrance acquired ownership of the Property. A copy of the 1918 deed is attached as Exhibit B,
From 1918 to the present date, the LaFrance family has continued to own the single lot and has
never had common ownership of any adjoining parcel.
B. North Andover Zoning Dates Back to 1956, and Has Consistently Protected
Preexisting Nonconforming Lots Such as 34 Wentworth Avenue.
In June 1956, the Town of North Andover first voted to approve a comprehensive zoning
bylaw at Special Town Meeting. In so doing, the Zoning Bylaw (1956) provided an exemption
for lot area and lot width requirements for lots within any Residence District for those lots "laid
out and duly recorded by plan or deed prior to the effective date of such otherwise applicable
requirements..." At the time of the adoption of the Zoning Bylaw, the Property (which was
within a residentially zoned district) had been laid out and duly recorded by a plan or deed and
otherwise did not meet the required lot size and lot width requirements under Section 6.3 of the
1956 Zoning Bylaw. Section 6.61 of the 1956 Bylaw, however, exempted such lot size and lot
width requirements for the Property given the fact that it had been duly laid out on a recorded
plan prior to the adoption of zoning and was not held in common ownership with any adjacent
lots. Excerpts of the 1956 Zoning Bylaw were provided to the Building Inspector together with
the Applicant's Statement in Support of Building Permit.
In 1966, the Zoning Bylaw was amended, but the exception for pre-existing undersized
lots remained. By the 1966 Zoning Bylaw exception as described in Section 6.61, the language
was slightly modified to provide that while lot size and lot width were exempted for pre-existing
lots, that any structure to be located on the lot provide for 12' wide side-yards and 20' deep front
and rear yards. In other words, the 1966 amendment of Section 6.61 established the zoning
requirements for pre-1957 lots, which provided a specific set of side and fiont/rear yard
requirements. As such under the Zoning Bylaw, there were a separate set of requirements for
post-1957 lots (which included minimum lot size and frontage, together with side/fi-ont/rear yard
setbacks) and a set of requirements for pre-1957 lots (which only included 12' side yards and 20'
fiont/rear yards).3 The language of the Zoning Bylaw was clear in pre-1957 lots intended for
3 Under M.G.L.c.40A,§6,it is recognized that the state statute requires protection for separately-owned residential
lots of at least 5,000 square feet with 50 feet of frontage. However,the case law is clear that Chapter 40A,§6
provides a floor for protection and reserves to the municipality the ability to provide for broader protections for
owners of nonconforming structures,uses,and lots beyond the protections offered in G.L. c.40A, §6.See Rourke v.
Rothman,448 Mass. 19(2007). See also United States ofAmerica v. Welffleet Zoning Bd. of Appeals, 17 LCR 784 ,
787(2009); Carabetta v,Board of Appeals of Truro,73 Mass.App.Ct.266,269 (2008). The North Andover Zoning
{00210920;vII
s
s
Dawne Warren, Town Clerk
Town of North Andover
November 11, 2021
Page 4
single-family dwellings were subject to only two dimensional requirements: side yards and front
and rear yards.
In 1972, the Zoning Bylaw was again amended; whereas the prior residential districts had
been Village, Country or Rural Residential, the 1972 amendment resulted in the residential
If
district categories of R-1 to R-4 Residential, which designation carries through to the present
day. Per the 1972 Zoning Bylaw amendment, the Property was designated within the R-4 zoning
district. In accordance with Table 2, the R-4 district dimensional requirements included lot size
of 12,500 square feet and 100 feet of frontage. However, similar to the versions of the Zoning
Bylaw pre-1972, the 1972 amendment continued to exempt pre-existing lots from area and
frontage requirements of Table 2 and to require a separate set of requirements. Those
requirements, which formerly had been contained within Section 6.61, under the 1972 Zoning
Bylaw amendment were described within the renumbered Section 6.8 (Exceptions). Section 6.8
provides:
(1) The residential lot areas and frontages above required and listed in Table 2 shall not
apply in any residence district to any lot of less area or less fi-ontage than above
required if such lot be not adjoined by other land of the same owner, available for
combination with or use in connection with such lot, provided that the applicant for a
building permit on any such lot shall show by citations from the Essex County
Registry of Deeds incorporated in or attached to such application that such lot was
lawfully laid out and duly recorded by plan or deed prior to the effective date of this
By-Law and provided that on such a lot there shall be kept open and not build upon a
fi•ont yard and a rear yard each of not less than 20 feet deep, and two side yard, each
of not less than 12 feet wide.
Since at least 1918 (i.e., nearly 40 years prior to the inception of North Andover's Zoning
Bylaw), the Property had consistently been a single lot, not adjoined in ownership with either of
the adjacent lots and subject to the zoning exception for preexisting lots not in common
ownership. It was not until 1974, when the Zoning Bylaw was again revised to include a
requirement that in addition to the front yard/rear yard setbacks of 20' and the side yard setbacks
of 12' for pre-1957 lots, such lots were also required to have a minimum street frontage of 50'
and minimum lot size of 5,000 square feet. The current version of the Zoning Bylaw has
renumbered the pre-existing residential lot exceptions to Article 7 and is now contained in §195-
7.8(A).
As such, from the inception of zoning in North Andover until the 1974 Zoning Bylaw
amendment, 34 Wentworth Avenue was a compliant lot per Section 6.6 (later renumbered as
Section 6.8). It was not until the 1974 bylaw amendments that the Property first became a pre-
existing, non-conforming property and subject to the grandfathering under the pre-1974 version
of the Zoning Bylaw. Grasso's proposed single-family dwelling comports with the bylaw
Bylaws provided such broader rights and protections for residential lots created prior to the Town's adoption of a
comprehensive zoning bylaw.
(002 1 09za;v t)
e
Dawne Warren, Town Clerk
Town of North Andover
November 11, 2021
Page 5
requirements that had been in effect immediately prior to the 1974 amendment. Notably, the
proposed dwelling as detailed within Grasso's building permit application maintains at least 12'
of side yard to each the right and the left of the structure. Further, the proposed dwelling is
located such that the front and rear yards are at least 30', i.e., comfortably in excess of the 20'
front and rear setback requirement of the Zoning Bylaw.
The Building Inspector should have ap lied the relevant pre-1974 provisions and issued
the requested building permit to the Applicant.
F
On behalf of the Applicant, we respectfully request the Zoning Board to overturn the
BuiIding Inspector's denial of issuance of a building permit and to order the Building Inspector
to issue such permit on Grasso's application. Thank you for your prompt and immediate
attention to this matter.
Ve truly yours,
I
ephatiie A. Kiefer
Encl.
cc: North Andover Zoning Board of Appeals
North Andover Building Inspector
a Even if the Building Inspector were able to ignore the grandfathered status of the Property and apply the provisions
of the current Zoning Bylaw,the Building Inspector's decision was in-error as variance relief would not be required
under the default R-4 dimensional requirements as set out in Table 2,but would be those as contained in Section
195-7.8(A)which provisions apply to pre-]957 lots.Under such an analysis,the proposed single-family dwelling
would only require two de mini»tis variances: frontage(variance of 2.5')and lot area(variance of 426 so.On
October 14,2021 the Applicant previously filed for variance relief in the alternative to this appeal.
f 00210920;v 1)
...........................
i
E
Exhibit A
f
s
pi
s
E E
r zoldlig Bylaw Denial Forrtr
E `[owji of Noah Andove►'13utldittg Departs►ent
120 Mahn S#►cat
Nortl►Midovet;MA,01845
Plto►te 978-688.9545 Fax 978-688-9542
't S
treet: 4 Wentworth Avenue
7, dilb ant: Jonarmn Grasso
Request: Varlanae
ate;
Plea—a—eTo-Rvleed Mal a er review of yourApplicallon and Plauffiat your pp cat on s BMt:t)for 1 s of ow ng on ng
Bylaw reasons,
70n in
Ifem Notes Item Notes
A LotArea F Frontage
To!area Insufficleffi 1 _E(q_k1Agofnsu ant X
2 Lot Area Proex[sli 2 frontage Complies
3 Lot Area Co les 3 PreaAsum fronia e
Insufficient Infomtallon 4 Insufficient information
Use
1 G o access over Frontage
1 Allowed C Cwrl[ trans Hulldfn Rrea
2 NotNlowod 1 InsuffidenlAfea
3 Use preexIsUrin 2 Can Nee
15pecial permit Required 3 Pfeeksting CBA 1
6 insuffident Informalfon 4 Insufficient Infoamauon
C Setback H 6ulidin "eight
1 All setbacks camp 1 HO W Exceeds Maximum
2 Front insufffdent 2 Complies
Side InsuffWant X 3 reek sl e i
4 Rf ht Side Insuffident X 4 Insufficient Informations
5 Rear insufficient I Building Coverage
B PreexisUng setbacks ? Goverage exoseds maximum
7 Insu dent Informal on2 Covero a compiles f
tI Watershed 3 Covero a Preexisting [
1 Notin Watershed 4 Insufficent information 4
2 In Watershed J Sl n
3 Lot or to 10124194 1 S n not allowed
4 Zone lobe Determ[n n m as
5 Insufficient Information 3 fnsufildent Inforrnaucn 1
Historic District K Parkin
1 to DlsbiCt review required 1 More Parkin Required
Not n dial 2 Parking Cam es
a Insufficient Information 3 insufFidenl lnformation
4 Pro-existing ParkIng
Remed for the abovo Is cheoked below, i
E
S Dotal Permits PlanningBoard Item# Variance
Site Plan Review S sclal Porml# A3»M4 Selback I
Access other than f%fi a Sp edal Permit Parkl
Franca a Fxce lion Lot$ dal Permit A 1 Lot Area
mmon Dfivewa eels Perm t He t
Congregate using octal Permit F 9 Front e
Continuin Caro Relirement S cfel ParmR Conti none Buildl Area
Independent B(dart Housl S clei Pernrlt special Permits Zonis Board
-Lame Es#ate Co o a Perm t S al Feral on• on omtln Use ZBA
Planned Development pfslrlat S edai Permit Earth Removal S eclat PWhk ZBA
Planned Resldenlial Special Permit S adal Perrrrll Use not L#sted but sfmifar
R-B Denslily Spool Permit special permit for Sign
Watershed ads edsj Permit s al ems t or roe sun nonconfarm
i
EE
E t
Frontage
Plan RevlewNarrative
Yh`e following.narralive Is provided to further explain the reasons for DENIAL for the APPLICATION for the property Indicated on Itie reverse We,
NO
A 3 rLeftsetback 12.2 feet proposed.Required in R 415 Feet relief of 2.8 Feet needed,
A 4 setback 12,3 feet proposed,Required in R 416 Feel relief of 2.7 feat needed.
AT—! Frontage 47.5 proposed.Required In R 4 Is 100 Feel relief of 52.5 feet needed,
F 1 161 Size 4547 Square Fee!Requlre(l In R 4 is 12,500 relief of 7953 feet needed.
The above review and attached explanation of such is based on the plans and Information submIl ed. No definitive review and or advice shall be based
on verbal explanations by the applicant nor shall such verbal explanations by the applicant serve to provide definitive answers to the above reasons for
Any Inaccuracies,misleading Information,or other subsequent changes to the Information submitted by the applicant shall be grounds for this review to be
voided at the dlscreilon of the Building Department,The attached document titled'Plan Review Narrallvd'shall be attached hereto and hicorporated
herein by reference, The building department will retain all plans and documentation for the above fife.You must file a new permit appl€cation form and
begin the permitting process,
—10/1412021 _1011412021
Bu)ld Department Officlal Signature Application Received Application Denied
Denial Sent: 1011412021 if Faxed Phone Number/Date;
Referred To:
ROMservation
X Health
ce X Zoning Board
Depadment of Public Worksning Historical Commissionr X Building Department
i
f
pi
Exhibit B
i
E �
I � -
395
L own,
1z Alp-
1 e
—z, �ct49�Ar _nmc1, r1n�A. pq_ ,_ s�e _�Q,�
1 �9 Az
Wax
_ aa,���o. ,n , _ b... �j•
may-- QSTyL W S'Fn, t-
- S
woz 00Q_WA.i m
Mc�m and
l.A,la33�?-,..`q_Yet�m`�c\� �t�t��-,:tl liAt etw� •�.� '.
�� �-�.�,(� �.-sa�l.y,..���.. cZ`---^ir4-CSC-•f 1.�F.n'�_tY,i<_S,(]�. - hmh� �
�l�
......... ............ ...
Y
41
f u
i
�-