HomeMy WebLinkAboutOpinion Town Counsel 2023.11.14 - Correspondence - 0 WINTER STREET 11/14/2023 TOWN OF NORTH ANDOVER
OFFICE OF TOWN COUNSEL
Christine P. O'Connor
coconnor@northandoverma,gov
Opinion Re: Lot 104C-110, Lot 104C-149 & Lot 104C-150 Winter Street
A request was submitted to the North Andover ZBA on behalf of three separate trusts: Odelle F.
Cashman Trust (Owner of Lot 104C-110); Frank Cashman Realty Trust (Owner of Lot 104C-149);
and,Joan M. Cashman Revocable Trust (Owner of Lot 104C-150) (hereinafter "the Trusts"). The
Trusts seeks building permits for three undeveloped lots relating back to a constructive
approval of a 1987 subdivision plan. The constructive approval of the plan resulted from the
failure of the planning board to timely transmit its denial to the Town Clerk for certification.'
It is the position of the Trustees that lots created by Plan 40905-D are governed by zoning
protections under the Zoning Bylaw in effect when the plan was filed on May 1, 1987. Following
the approval of the plan, the Town adopted a substantive change in the dimensional
requirements of it zoning code requiring 2 acres for buildable lots. The original plan called for
the creation of eight (8) buildable lots Lased on a pre-May 2, 1987 Zoning Code. Five (5) of the
created lots did in fact receive building permits, and the remaining undeveloped lots (three)
continued to be assessed as buildable lots. Building permits were granted from 1991-1997. The
Trustees rely on the following arguments:
• Out of the eight (8) lots approved, three (3) were granted building permits after the
expiration of the 3-year ANR Plan zoning freeze;
• All three (3) remaining lots continued to be assessed as buildable lots;
• Denying building permits for these lots would create a lack of uniformity and
consistency in the Town's enforcement of Zoning laws; and that such action would be
viewed by the courts as "arbitrary and capricious."
Discussion
The issue presented is whether three remaining lots of a 1987 constructively approved
subdivision plan are still building lots despite a change in zoning regulations requiring two (2)
acres. But for the claim that the lots are still governed by a constructively approved subdivision
plan, the increase in dimensional requirements under the zoning amendment renders the
parcels as unbuildable.
The application was filed with the Planning Board on May 1, 1987.The Board voted to deny the application of
May 11, 1987.The Board did not give written notice of its decision to the Town Clerk until June 2, 1987.
Factors presented by the Trustees in support of the lots remaining buildable are that they
continued to be assessed as "buildable lots," and that other lots (3 in the 1990's)were deemed
buildable even 3-year ANR Plan zoning freeze.
Although the Trustees have argued that the continued tax assessment of the three lots as
"buildable lots" is a controlling fact,there is no legal support for that proposition presented in
their papers. Properties are taxed based, in part, on their use; and sometimes the use doesn't
conform to what is allowable under the applicable Zoning Code. In such instances, the Zoning
Code prevails regardless of the assessment or use. Here, any reliance on the properties'
assessments, despite the significant passage of time, as determinative of their allowable zoning
use, is misplaced.
The Trustees also argue that because other lots were given building permits beyond the 3-year
ANR zoning freeze, the remaining three lots should be treated consistently. Further, the
Trustees argue that to treat these remaining three lots differently would result in a finding that
the Town is arbitrary and capricious in its application of its zoning bylaw. Here, however, the
Board is presented with a unique and extreme pattern of facts. Given both the substantive
change in the Town's Zoning since the subdivision plan was first constructively approved; and,
that nearly thirty-years that have passed since the last lot was granted a building permit, means
that these three remaining lots are not similarly situated. No legitimate argument can be made
that the Town is forever wedded to either a constructively approved subdivision from almost
forty years ago; or the decades ago issuance (whether legally correct or not) of building permits
after a zoning freeze.
For the forgoing reasons, the Zoning Board is neither tied to the past assessments or the past
issuance of building permits in deciding this matter.