HomeMy WebLinkAboutMemo to ZBA from S. Kiefer - Correspondence - 34 Wentworth Avenue 1/31/2022
M EMORANDUM
To: North Andover Zoning Board of Appeals
From: Stephanie Kiefer, Esq.
Re: 34 Wentworth Avenue, North Andover
Date: January 31, 2022
This memorandum is submitted to the Zoning Board for its review in further support of:
i) the appeal taken by Jonathan Grasso (Applicant) from the decision of the North Andover
Building Inspector to deny a building permit for the construction of a single-family dwelling at
the Locus; and alternatively, ii) Applicants request for variance relief. Specifically, this
memorandum is provided to supplement the Applicants prior filings and to respond to the
memorandum prepared by Town Counsel, Suzanne Egan, Esq., dated January 6, 2022 and
provided to the Applicant at the public hearing on January 11, 2022.
Town Counsels memorandum states that the Locus, 34 Wentworth Avenue, is currently
located in the R4 zoning district and contains 4,750 square feet of lot area and 47 feet of
frontage. Town Counsel further asserts that the Locus is not grandfathered and that the lot is
required to have 12,500 square feet of minimum lot size and 100 feet of frontage.
Prior to addressing Town Counsels analysis as to whether the Locus is grandfathered, it
is relevant to clarify and/or correct certain background information set out in Attorney Egans
memorandum. Specifically, the Locus lot size is actually 4,547 square feet with 47.5 feet of
frontage on Wentworth Avenue. Second, Attorney Egan notes that the property was first
acquired by the LaFrance family in 1918 for $1.00. It is correct that the LaFrance family
acquired the Locus in 1918 by deed recorded at the Essex North Registry of Deeds, Book 395,
Page 553; however, the amount paid for the property cannot reliably be ascertained by reference
to the 1918 deed. The language of that 1918 deed states that consideration was one dollar
together with other valuable consideration. Unlike present day recording standards where the
actual amount paid is reflected on the deed, deeds recorded a century ago typically did not state
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the actual consideration paid to the grantor. Third, Town Counsel states that the underlying
zoning requirements for the Locus include a minimum lot size of 12,500 square feet and
minimum frontage of 100 feet. This statement overlooks the provisions under Section 195-7.8(A)
of the current Zoning Bylaw, which replaces the Table 2 dimensional standards for residentially
zoned lots that were laid out and recorded prior to January 9, 1957. Per Section 195-7.8(A), the
lot area and frontage requirements of Table 2 are not applicable. Likewise, the front, side and
rear yard requirements are modified such that front and rear yards are set at 20 (as opposed to
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For instance, reference to a contemporaneously recorded deed (Essex North Registry, Book 395, Page 549,
involved the conveyance of five (5) lots in Methuen also in consideration of one dollar and other good and valuable
consideration.
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30 under Table 2) and side yards are set at 12 (as opposed to 15 feet under Table 2).
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Applicants proposed dwelling on the Locus is modest in size with a footprint of 23 x 35, and
maintains both a minimum of 30 feet front and rear yard setbacks and otherwise secures a
minimum of a 12 foot setback as to either side yard.
Accordingly, if the Board were to rule against Applicants request for a finding that the
Locus is grandfathered under the 1972 Bylaw, the Boards consideration on Applicants
alternative request for variance relief should involve a review of the Applicants proposal in light
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of the criteria contained in Section 195-7.8(A) as opposed to Table 2. As presented in
Applicants Petition, the Locus is just slightly less than the 5,000 SF minimum lot size (having
4,547 SF) and 50 frontage (having 47.5of frontage), as described in Section 195-7.8(A). In all
other respects, the proposed dwelling meets or exceeds the dimensional requirements of Section
195-7.8.
Town Counsels analysis of whether the Building Inspectors determination that variance
relief is required appears to rest solely on an analysis of the legislative zoning exemption under
M.G.L. c .40A, §6. Attorney Egan is correct in stating that Chapter 40A, §6 was intended to
create a perpetual exemption from increased local zoning requirements to lots which were once
buildable under local bylaws. It is unclear however, why counsel assumed that that the Town of
North Andover acted in accordance with the current State Zoning Act (effective in 1976), by
revising the local Zoning Bylaw two years earlier, in 1974. The North Andover Zoning Bylaw,
as originally enacted and as amended through 1972, provided modified dimensional
requirements for pre-zoning lots. The requirements were tied only to side and front/rear yard
setbacks, and not to lot size or lot frontage. The specificity of those limited dimensional
requirements make it clear that the local bylaw was intended to be broader than the predecessor
to the modern day Chapter 40A. While Chapter 808 of the Acts of 1975, through which the
Legislature enacted the present day Chapter 40A, includes the minimum of protection that is to
be afforded to pre-existing lots in terms of protection, it is not intended that the State Act thwart
more lenient local bylaw provisions, such as the grandfather provisions under Section 6.8 of the
1972 Bylaw.
The Town Counsels review of this matter does not address an issue raised on appeal by
the Applicant, i.e., that the Locus complied with all local zoning requirements as per the original
North Andover Zoning Bylaw and up to and including amendments through 1972. In fact, the
Towns zoning bylaw, as amended through 1972, did not seek to impose any minimum lot size
on protected residential lots. By the time the bylaw was amended in 1974 to include a minimum
lot size of 5,000 square feet and minimum frontage of 50 feet, the LaFrance family had no ability
to obtain an additional 453 square feet of land area or 2.5 feet of frontage, as the properties on
either side were both undersized and already developed. The Towns broader zoning exemption
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Applicants 23 x 35 proposed dwelling may be contrasted to the larger dwelling constructed on the adjacent lot at
30 Wentworth Avenue, which dwelling has a footprint of approximately 24 x 46 and is situated on a lot that is
slightly smaller than the Locus.
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As explained in Rourke v. Rothman, a zoning bylaw can establish differing requirements for new lots, pre-bylaw
lots and separately-owned pre-bylaw lots. Rourke v. Rothman, 448 Mass. 190, 193 (2007). As stated by the Rourke
Court, nothing in the phrase provided that makes what follows no less a requirement than what precedes it.
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of Section 6.8 makes sense in light the laying out of entire neighborhoods, such as that
accomplished by the 1906 Highland Park plan involved in the present matter.
Finally, Town Counsel referenced an unpublished order per Rule 1:28 of the Rules of the
Appeals Court, Kimmett v. Tolland, 79 Mass.App.Ct. 1132 (2011). For the Board information,
an Appeals Court decision that issue pursuant to Rule 1:28 is primarily addressed to the parties
of that specific action and does not necessarily fully address the facts of the case or the Appellate
Court panel rationale. Further, Rule 1:28 decisions, such as the cited Kimmett case, are not
circulated by the entire Appeals Court and only represent the views of the appellate panel. Such
Rule 1:28 decisions are not binding precedent. Aside from the limited value of the Kimmett case,
that decision is also factually unrelated to the present matter. In Kimmett, a property owner had
owned three contiguous undersized parcel, acquired in 1973, 19974 and 1976 and thereafter sold
one of those parcels to the appellant, in 2004. The Court analysis was related to whether the
local bylaw protected common lots differently than the State Act. Here, there question of
commonly owned lots is not, nor ever has, been at issue. The Locus has been continuously
owned by the LaFrance family since 1918 and the owners have never owned any adjacent parcel.
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