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HomeMy WebLinkAbout1991-06-27 Legal Correspondence LAW Opmrs Or CARMINE W. DIADAMO 40 APPLETON WAY LAWRENCE, MASSACHUSETTS 01840 AREA CODE 508 PARA-LEGALS CARMINE W. DI ADAMO 685-4271 688-8584 TED EAIRBURP GEORC,r M. EARLEY PAX: 794.4743 ANNA M. BEd'; 0SIAN June 12 , 1989 Mr . Paul Sharon Town Manager North Andover Town Hall 'North Andover , 'MA 01845 Re : Charles and Jane Nelson (Penni Lane, North Andover , MA) Dear Mr . Sharon: Please be advised that this office represents Charles and Jane Nelson who reside at 31 Gray Street , North Andover , MA. Mr . & Mrs . Nelson also own a parcel. of Land contiguous to Penni Lane in North Andover . The purpose of this letter is to inform you that my clients are attempting to enlist the support of the Board of Selectmen in remedying a problem which has made their land on Penni Lane unbuildabl.e and, therefore, valueless . The history of the problem is as follows : When the Definitive Subdivision Plan of Penni Lane (Harold Parker Estates) was reviewed by the North Andover Planning Board , it was readily apparent that the plan would l.andlock the Nelson property . Because of this , the Town . entered into an agreement with the developer , Scott Properties , Inc . , that Scott Properties would grant an easement to the Town. Your review of the plan which is attached hereto and marked "1'I should show you why the easement was necessary . Penni. Lane , as laid out , meets the Nelson land at a single point . The triangle marked in red is the land involved in the Grant of Easement dated February 21 , 1989 attached hereto and marked IT' . If the road was completed 'in the easement area , the Nelsons would have a buildable lot under 7 . 2 of the North Andover Zoning Bylaw. A copy of 7 . 2 is attached hereto and marked "3" . Obviously , Mr . & Mrs . Nelson do not expect the Town to complete roadwork in the easement to bring Penni Lane to their lot . It Mr . Paul Sharon -2- June 12 , 1989 appears to me that the Town made an innocent error in accepting the Grant of Easement ,£rom Scott Properties . The grant should have run to the Nelsons ' so that they could have taken whatever action was required to make their 3 . 3 acre parcel a single building lot as contemplated . Since the Town entered into the easement' agreement for the Nelsons ' benefit , my clients are now requesting that the Board of Selectmen vote to convey the Grant of Easement to them so that they can complete whatever work is necessary to establish their land as a buildable lot . They do not believe that Town meeting action is necessary because it was never intended that this grant become Town property . Again, the sole purpose in obtaining the easement was to provide access to the Nelson property . If the Selectmen convey the easement to the Nelsons , they can then appear before the North Andover Planning Board and take whatever action is necessary to accomplish the purposes contemplated by all parties to this very unique transaction . T, would appreciate it if you would bring this attention of the Board of Selectmen to determine whether or not the Board will act in this matter . 1 Very truly yours , CW6/amb Carmine W. DiAdamo Enclosures cc1' Mr . Charles Nelson 31 Gray Street '"A North Andover , MA 01845 i •F� j 4 _I KOPELMAN AND PAIGE, P.C. ATTORNEYS AT LAW SUITE IpOO 77 FRANKLIN STREET LEONARD KOPELMAN BOSTON, MA55ACHUSETTS 02110 V DONALD G. PAIGE 1-0750 ELIZABETH A. LANE ��! f) 7 �„�,�r 5t-1863 JOYCE FRANK ��1E [, + hi7] 451-t863 JOHN W.GIORGIO ' BARBARA J.SAINT ANDRE A 7u `t JOEL B,BARD -'•13'+° NORTH ANpOVER RICHARD J.FALCON OFF 0E OF TOWN MANAGER GEORGE M.MATTHEWS JAMES A.DYREK EVERE'TT J.MARDER JANE M.OWALLEY KAREN V.KELLY COLLEEN B.WALKER 50NORA M. KORMAN ANNE-MARIE M.HYLAND June 23 , 1989 RICHARD BOWEN CH£RYL ANN BANKS Mr . Paul. D . Sharon Town of North Andover 120 Main Street North Andover, MA 01845 RE: Nelson Easement Dear Mr . Sharon: You have requested an opinion as to what action the Town can take to allow Charles and Jane Nelson to access their property on Penni Lane. In my opinion, the Town cannot convey their easement to the Nelsons without a Town Meeting vote . The Board of Selectmen can, however , vote to grant the Nelson's a lease to use the land . Under Mass . General Laws , Ch. 40 Section 3, the Board of Selectmen can only convey real property by the authorization of a Town Meeting vote . Therefore, it would require a Town Meeting for the Selectmen to transfer the Town ' s easement to the Nelsons . However , since the Selectmen can , under Ch. 40 , Section 3 lease property without a Town Meeting vote, it is my opinion that they could grant the Nelson 's a lease to use the property. The lease would not convey a fee interest in the Land . It would be for the Nelson 's use only and would terminate when they sell the property . Because of this , I would suggest that an Article for an easement be drafted for the next Town Meeting and a lease be executed in the interim. i KOR LMAN AND PAIGE, R C. Once I have received the plan describing the easement, I would be happy to draft the lease and/or the Article. Please advise as to how you would like me to proceed . Very truly yours , Colleen B. Walker CBW: jm LAW UFE'ICE, OF CARMINE W. MADAMO 4o APPL.ETON WAY � LAWRENCE, MASSACHUSETT'S 01840 AREA CODE 508 CARMINE W.DlADAMO 685-4271 688.8584 f�- -PARALEGAI-....- GEORGE M.EARLEY FAX:794-4743 1,„C"- ... ..i` AI N 4,IY1;�f3 PROSIAN FREDERICK M, FAIRI3URN April 17/ 1990 Mr. James P. Gordon Town Manager North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: Charles Nelson Penni Lane Easement Hear Jim: Charles Nelson forwarded a copy of the Koppelman and Paige letter dated April 31 1990. Despite my .,detailed explanation to Ms. Banks about what 'I intended to accomplish I don' t think the message was fully understood. The following is an outline of my plan in the simplest form: The Town presently own an easement which runs from the finished portion of Penni Lane to Charles Nelson' s lot . I have been informed easement still has not been recorded. I do not want the easement conveyed to Charles Nelson as I recognize that it would probably require town meeting action. I wanted, instead, town counsel to evaluate whether or not the selectmen can grant my client the right to construct a road on the easement . Since the easement is designed for travel, the town is giving nothing up. It is simply granting the right to Charles Nelson. to construct a road on the easement which would be a betterment and would not involve the transfer of an asset by the Town. Naturally, the right would be granted contingent upon Mr. Nelson agreeing to comply with all the rules and regulations of the town with respect to the construction of a way. If a way were constructed in accordance with the North Andover bylaw and in accordance with the law governing form "A" lots, that portion of the way which abutted Nelson' s land would create the 50 feet of frontage required by the North Andover bylaw to make the land a legal , residential lot. Once the Nelson ' s have the absolute right to construct a road, I then plan to have a meeting with Karen Nelson and the abuttors. At present, the abuttors feel they can totally obstruct the Nelsons. With the right to. construct the road, I can offer the abuttors the choice of a legal , unsightly 50 foot road extension or a tasteful driveway traversing the easement to a designated Penni Lane Easement 2 April 17, 1990 location on the Nelson lot where a single family home would be located. If the abuttors see the wisdom of a driveway as opposed to a road extension, the matter can, be scheduled before the zoning board for a variance. At present, without the right to construct in the easement, the abuttors would defeat the variance request either before the Board or in court . Simply stated the town, since the mid 1970's fully intended that Mr . Nelson have a buildable lot on Penni Lane. At present, the abuttors wish to utilize his property as open space. If construction is inevitable the saner choice will prevail . While I am well aware that the town cannot give away an asset without a town meeting, in my judgment there is no prohibition to allowing a citizen the right to improve town property. Very truly yours, CWD/stm Carmine W. DiAdamo Beach at Law 216 Beach Street, P.O. Box $3 Revere, Mausaahunelts 62151 (617) 289.5865 July 15 , 1991 4 � Karen Nelson, Director Planning & Community Development Town Hall North Andover , MA 01845 RE ., PENNI LANE EASEMENT Dear Ms . Nelson: Please be advised that this office represents Mr . & Mrs . Joseph DiBlasi regarding the above captioned matter . A review of the documents which have been made available to me reveal that there are several title and zoning questions which have not been addressed by all of the interested parties . Without going into all of the questions , I would like to point out what I feel are the two most important . I believe that these questions must be answered before any further action is taken by the Planning Board in order to protect the rights and interests of all parties . First , it must be determined who owns the fee or title to the land described as the "fifty foot easement for future road . " My clients ' deed grants them title to Lot 10 Penni Lane but specifically excludes "the fee in Penni. Lane and the- fifty foot easement . " Please note that this latter language does not exclude the fee in the fifty foot easement . Therefore , it can be argued that the fee was conveyed to my client . It can also be argued that the fee in the fifty foot easement was excluded and therefore title remains with the developer . In either case , what cannot be argued is that the Town of North Andover does not own in fee the land compromising the fifty foot easement . As further evidence of this , the grant of the ease- ment by the developer to the town did not occur until February 21 , 1989 ( the DiBlasi ' s purchased Lot 10 on December 28 , 1988 from the prior owners who purchased the property from the developer in 1976 ) . The language of the grant of easement did not convey the fee , but rather only the right to construct a Tut;ure road. Page 2 Second , it must be determined if the Planning Board can approve the proposed use of the fifty foot right of way by the owners of Lot 7 , the Nelsons . In a similar case , it was held that a town planning board ` sapproval of a private way under the Subdivision Control Law does not vest rights to use such way in land owners whose lot was not in the subdivision. As a result of this decision the landowner could not use such private ways as a basis for complying with the town by-law for frontage before a permit would be issued for construction of a dwelling. Dolan v. Board of Appeals of Chatham, 359 Mass . 699 ( 1971 ) . - Because of the foregoing questions , zoning and title problems are clearly created by the proposed use by the Nelsons since it changes the proposed "future road . " But just as clearly , if all of the parties agree , a solution can be reached and for title purposes the necessary grants , releases or abandonments of all right , title and interest can be executed by my clients , the developer and the town. I will be happy to meet with any of the interested parties to discuss an amicable solution to this matter . Very truly yours , RICHARD B . VILLIOTTE RBV : pf cc : Christopher Huntress , Town Planner James Gordon, Town Manager Domenic Scalese, Esq. Harold Morley , Jr . , Esq . Kopelman & Page Mr . & Mrs . Joseph DiBlasi Carmine W. DiAdamo , Esq. I f HAROLD MORL EYE JR. -4t1oPne y at cZ aW 40 APPLETON WAY E i LAWRENCE, MASS. 01840 TELEPHONE (508) 683.9423 {J`iS i� ( } FAX (508) 794-4743 1 E i January 220 1991 Karen H.P. Nelson, Director Division of Planning & Community Development Town Hall North Andover , Massachusetts 01845 Dear Mrs. Nelson: As you know, the Board of Selectmen has authorized Charles G. Nelson to install a street from the head of Penni Lane to his land over the 50 ' easement granted to the Town by the developer in accordance with the original subdivision. I have submitted a proposed street plan with building specifications to your Board for approval and have recently been informed the specifications satisfy the Town requirements. Mr. Nelson is proposing to go forward with the construction of t-he street to give him the necessary street frontage in order to get a building permit for the 3.02 acre lot. However, it would seem more prudent to submit an alternate plan to the neighbors for the construction of a driveway access to the lot by way of variance from the Zoning By--Law rather than the actual construction of the street. It will be visibly less offensive to the neighborhood , in particularly, to the DiBlaisi family' across whose land the access will be placed. I am writing this letter to you together with a copy of the proposed variance petition for submission to the neighbors. If you think this conduct is prudent would you please submit it to the neighbors along with the plans I have previously filed with the Board for their approval. Needless to say if they do not approve the same or choose to litigate the matter the Nelsons will be forced to build the street in accordance with the submitted plans. Kindly let me hear from you at your earliest convenience. ry t r u ours" arol Morley, J . HM: s enc. cc: Charles G. Nelson O y ICAREN H.P.NELSON s~6 `� (y�'1 �} 11�1 Haiti t cet, 018 1!i Director N01(' .' 1 .l' ND0V 1`1t (.,«tip liri;� c,Ir3;� BUILDING Acma4 CONSERVATION PLANNING PLANNING & (I'M[IirIUN1`I T DEVE'WFIVIF?1`4T February 6, 1991 Harold Morley, Jr. Attorney at Law 40 Appleton Way Lawrence, MA 01840 Re: Charles G. Nelson/Penni Lane Property Dear Mr. Morley: I am receipt of your letter dated January 22 , 1991 regarding the status of the property owned by Mr. Charles Nelson on Penni Lane. Based on the history of the parcel , and Mr. Nelson ' s efforts to work with the neighbors to devise an alternate plan through the Zoning Board of Appeals quite some time ago, those efforts failed both before that board and the neighbors who were present at that meeting and one other meeting which I attended in the Town office Building. Therefore I suggest that you and your client continue down the path of filing with the Planning Board for a one lot subdivision with a formal waiver request to reduce the width of the subdivision roadway to that of a common driveway standard. To date I have received a copy of the plan which shows the proposed layout and it does appear to Conform to the above referenced standards. Our office will require that Mr. Nelson submit a completed application, along with all necessary plans and a certified list of abutters. The forum to discuss any other alternatives to the definitive subdivisions will take place at the public hearing in which all abutters to the site will have been notified by mail and a legal notice will be published in the Local paper. It may be tight to schedule the project on the Planning Board meeting of Thursday, February 28th, however I recommend that you contact Christian Huntress , the 'Town Planner for assistance in filing your application. Feel, free to contact either of us at 682--6483 . Sincerely, l _k. l Kare H. P. Nelson, Director c C. Huntress, Town Planner J. Gordon, Town Manager C. Nelson HAROLD MORLrEY, Jars. �/`I6fONJ1LfJ F71 �Ftfl/ -- — . y. ..`�. 40 APPLE'TON WAY LAWRENCE, MASS. 01840 fEt_Fr rtc�rJ (508) 66, -9423 J N 2 VAX (5081 794-4743 January 22 , 1991 Karen H.P. Nelson, Director Division of Planning & Community Development Town Half. North Andover , Massachusetts 01095 Dear Mrs. Nelson: As you know, the Board of Selectmen )aas authorized Charles G. Nelson to install a street from the head of Penni Lane to his land over the 501 easement granted to the Town by the developer in accordance with the original subdivision. I have submitted a proposed street plan with building specifications to your Hoard for approval and have recently been informed the specifications satisfy the Town requirements. Mr. Nelson is proposing to go forward with the construction of the street to give him the necessary street frontage in order to get a building permit for the 3.02 acre lot-. however , it would seem more prudent to submit an alternate plan to the neighbors for the construction of a driveway access to the lot by way of variance from the Zoning By-Law rather than the actual construction of the street. It will be visibly less offensive to the neighborhood , i-n particularly, to the DiBlaisi family across whose land the access will be placed. I am writing this letter to you together with a copy of the proposed variance petition for submission to the neighbors. If you think this conduct is prudent would you please submit it to the neighbors along with the plans I have previously filed with the Board for their approval. Needless to say if they do not approve the same or choose to litigate the matter the Helsons will be forced to build the street in accordance with the submitted plans. Kindly let me hear from: you at your earliest convenience. Ve yJtru],y-- ours 1f1arolc�. f3or ley, Jr' HM: s enc. cc: Charles G. Nelson + t 'A Perrni•t tile r e erection of a .scription of reli' ? sought on this Peti iO' ; . single f0mily dwelling•.on a lot using a dri eway,fox. aiccess rt.ther than installij- 0-t fJ,fEF ont_s rest. ; Defied r6coeded in the Registry of Deeds in Book -o� Page szo ,'.'. Land court Certificate No . Boolt ^ 'Page The principal points upon which I base ,my applicati,,on are as fO11Ow3 : {muat , be , statcd in details :;� ''� wi11 be_less detrimental.-for die ne' ht)d t�o perwit at;cel:s 1)y use_ of a .��. driveway rather than installing as 550 foot road over the Town's 'erU_ _erit, I agree to pay the filing fee , advertising ire newspaper , and incidental expenses* ,��,, `"��` Slgr]iltuze oLWPe�tior e�'Za� . . • �� ' � n a f of iEr approved Every application for' action by t:ho Board shall be made o by, the Hoard . These forms shalt be fur"ni he(ation s}i aC 11r ktr 011 desquei ere Any communication purportfr�c to be an a1?n notice of' intention to seek relief rnalioncica.11'ed for1bY� tircaforin shall1 official application form . AJL infar be furnished by the applicant in Cite manner ' t�lrerein.. pre scr i beet . t of "Part;i. es 1n interest" Every-application shallb'e submitted With Lis owners of land directly Which list shall • include .the petitioner , , abutter. , opposite on any P ublic • or private street: or way, and abutters to the abutters ,'within ' three hundred feet ( 300 '- ) of the l PCOPerty �. i rye of titre petitioner'' as they appear , on the most recent. applicable tax list , ch otwithstanding that the ,land of any sy o °town . andis o tile ePlanningd intl3oardlot, or town, thePLar�ning n Board of t}ie cz t: z ;very abutting city or town , hall be submitted with ' an appl'icatiorl charge cost: irl ' k application s the petitioner shall be reat,orisible Every aPP Dp In additiaei , _he a�rount' of 'S25 • eti•tion before tile Hoard . ; :he any and all costs involved in brirlging the P Such. costs sha CorIt include trailing and publication, but are not rreCessarily,,' Limited to these . roved by the :,Very a plication shall be submitted with a plan o£ hand approved tan alas ,V y P be broug g Laps are o eti.t�,on wit]. 1}.t befnrc the Board unl,esc� saki p Joard .' N P the Board ' s requi. ret+rcnt.s r. egardin P cast✓ . Seen submitted . copies of ea].s "poll req :ttached ' hereto or are available from ttic Board ,o� , p LIST Or pAIV.rIES IN IN`i'EIIES, e. >e -i G� G 1 Received by Town Clerk: i i t TOWN OF NORT11 AN©OVERs MASSAC11USETTS + w DoAlu) or APPEAt's 7 / t 663•-9423 , APPLICATION FOR RELIEF FROM 'lllE REQUIREMENTS OF THE ZONING ORDINANCE Applicant Charles G. Nelson _ Address 31 Gray Street, No. Andover, MA 1. Application is hereby made! a) Cor a variance From the requirements 'of Section 7 ,2 paragraph(l) (b) and Table of the Zoning By haws. b) par a special Permit under Section�_Paragraph� of the Zoning ' By Laws. c) As a Party Aggrieved, for review of a decision made by the Building Inspector or other authority. 2, a) Premises affected are .Land _ -and building(s )_numbered _ .,"• � -------- ----�.....��—..street. b) Premises affected are property with frontage on the North (X) Saud} ( ) East ( ) West ( ) side of�Penni_Lane —_ str`eet. Street, and known as No.�_ c) Premises affected are in zoning I)istrictR-2 , and the premises aff cted have an area of _ square feet and frontage of —feet. —/131,551.20 3. Ownership a) Name and address of owner ( if joint ownership, give all names ): Charles_G_. _Nelson and ,lane A. Nelson_ Date ofrpurchase_August_1 , 196(3'rcvious Owner�Ge_���('���j�1;E�ton b) If applicant is not Owner, check his/lyer interest in the premises: _ Prospective Purchase[ Size of �Lesec Other (explain) 4� Tproposed building:' front; feet deep; ^ !{eight stories; �—_.feet. a) Approximate date of crection:rT —�__ b) Occupancy or use of each c) Type of construction:______---------- buildin feet front; feet deep; 5, size of existing `�!--��fcet. },eight stories,*--- a) Approximate date of CrCCti0E1:� _�ry____ b) Occupancy Of use of each floor:__ 'c) Type of contraction: :.'�. ..' revious appeal , und o tier zoning, n tltcsct prcu+iseu7 ':,.:;.• G, Has there been a wizen? ;f:: J if so, �_�_- kofcvN 1 KAREN H,P. NELSON F � �7 F�To ® �j 120 Maki Street, 01$45 Dimdor ORH ER BUILDING i rsrvcst�N ot+ CONSERVATION PLANNING PLANNING & COMMUNITY DEVELOPMENT E i i i July 17 , 1991 Mr. Joel Bard Kopleman & Paige 101 Arch Street Boston, MA 02110 Re: Penni Lane, Definitive Subdivision Application Mr. Charles Nelson Dear Mr. Bard; I am in receipt of a letter from Attorney Richard B. Villiotte to Karen Nelson, Dated July 15, 1991 with regard to the above referenced Definitive Subdivision Application. Mr. Villiotte has raised two issues which he feels affect the Planning Boards review of the Subdivision. The first question being, who owns the fee in the fifty foot right of way across lot 10, owned by Mr. Joseph DiBlasi. It has been the understanding of the Planning Department that Mr. DiBlasi is the owner in fee of Lot 10, including the property shown as an easement area for future roadway extension. However, the Town of North Andover has been granted access rights across that easement for future roadway extension. Subsequently the Town has transferred those rights of easement to Mr. Charles Nelson for the purposes of constructing a single family home on his property. The second question raised by Mr. Villiotte is whether the Planning Board can approve the proposed use of the fifty foot right of way as presented by Mr. Nelson. Penni Lane is listed as a Public Way in the Town of North Andover. As such, Mr. Nelson would be afforded all rights of access granted to the general public across Penni Lane. Further, Mr. Nelson has access rights across the land of Mr. DiBlasi as granted through the easement for future roadway extension. Through Mr. Nelson' s application of Definitive Subdivision (M.G.L. Chapter 41 Section 81K-81GG) construction of a private way has been proposed. This private way would provide 50 ' of frontage for Mr. Nelson's property which contains three (3) acres of land. The lot is then conforming to the North Andover Zoning Bylaw as required by Section 7 . 2 (frontage exception) . 6 I Mr. Villiotte refers to a case entitled Dolan v. Board of Appeals of Chatham, 359 Mass. 699 (1971) . In that case the private roadway providing frontage is not owned by the developer, nor has the developer acquired the right to pass over private land through one of three allowed methods: adverse user; grant; or act of public authority. Mr. Nelson does have access across the land of Mr. DiBlasi through proper grant of easement for future roadway extension. Further, as stated in Murphy v. Donovan, 4 Mass.App.Ct.519 (1976) "The purpose and effect of a reference to a plan in a deed, is a question of the intention of the parties. . . The intention of the parties is determined by considering the terms of the deed together with the entire situation at the time it was given, including the physical condition of the premises and the knowledge which the parties had or with which they are chargeable. " When the Planning Board approved the Penni Lane Subdivision in 1975 a condition was placed upon the property that a fifty (50) foot easement for future roadway extension shall be placed across the property now known as lot 10. This was further recorded through an easement granting access rights to the Town of North Andover for future roadway extension and the reference of such easement in the deed for lot 10. These acts alone provide proof that it was the intention of the Planning Board and the Developer at the time to provide for the future extension of Penny Lane to the adjacent properties. I have been requested by the Planning Board to have a draft conditional approval ready for their review at the next regular meeting scheduled for July 23 , 1991. I have attached a copy of Mr. Villiotte's letter dated July 15, 1991. If, in your opinion, the Planning board would indeed be acting outside of their proper jurisdiction, or in violation of any State statutes, please inform my office prior to the hearing. Thank you for you attention to this matter. Should you have any questions or concerns please feel free to contact my office. Sincerely, Christian C. Huntress Town Planner cc: Karen H.P. Nelson, Director DPCD. Planning Board James P. Gordon, Town Manager i KOPELMAN AND PAIGE, P.C. :. LEONARD KOPELMAN DONALD G. PAIGE ` ! ATTORNEYS AT LAW j ELIZABETH A, LANE } 1 t, JOYCE FRANK 101 ARCH STREET JOHN W, GIORGIO BARBARA J. SAINT ANDRE BOSTON, MASSACHUSETTS 02110.1137 RICHAR❑ J. FALLON I6171 951-0007 GEORGE M, MATTHEWS - FAX 1817! 951-2735 WILLIAM HEWIG III EVERETT J. MARDER NORTHAMPTON OFFICE JANE M. O'MALLEY 1413! 585-8632 PATRICK J. COSTELLO KAREN V. KELLY - DEBORAH A, ELIASON JUDITH C. CUTLFR ANNE-MARIE M. HYLAND RICHARD BOWEN CHERYL ANN BANKS Jul 2I BRIAN W. RILEY y J9 ��ry, 1 .1. Mr. Christian C. Huntress Town Planner North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: Penni Lane Easement - Nelson Subdivision Dear Mr. Huntress: You have requested an opinion relative to two issues raised in connection with the use of the Town's easement over lot 10, Penni Lane as part of a private street layout to serve as frontage for an abutting lot, the Nelson property. Attorney Richard Villiotte has raised two issues on behalf of his clients who own the fee in lot 10. The first issue has to do with the fee ownership of the fifty- foot easement crossing lot 10. In this matter, I concur with Attorney Villiotte that the Town wao not granted the underlying tee in the fifty-foot strip of land. In my opinion, the developer's grant to the Town, as described in the document which you have provided to . me, only gives the Town an easement in the land for roadway purposes. However, this lack of ownership of the underlying fee does not, in my opinion, affect the Town's easement rights. The second question raised by Atty. Villiotte is whether the Planning Hoard, by approving Nelson's subdivision plan, can grant Nelson rights to use the easement in order to create frontage. Atty. Villiotte cites case law stating that the mere approval of a subdivision plan does not vest private property interests which do not otherwise exist. Dolan v. Board of Appeals of Chatham, 359 Mass, 699 (1971) . In my opinion, however, the Dolan decision is inapplicable to Nelsonts subdivision plan. PRINTED ON RECYCLED PAPER KOPELMAN AND PAIGE, P. C. Mr. Christian C. Huntress Page Two July 29 , 1991 The Nelson subdivision does not involve use of a privately owned street. Rather, Mr. Nelson seeks to develop and use an easement which has been granted to the Town of North Andover "for all purposes for which roads are used in the Town. " In my opinion, the Town has a right under such easement to authorize public access by laying out and constructing a street over the easement. The Town's right to lay out and construct a street may, in turn, be delegated to a private individual, in my opinion. Once the land within the easement has been laid out and constructed as a street, Nelson's right to use the street is the same as that of any member of the public. Therefore, in my opinion, the cited case does not apply in this situation. While the street, once approved and constructed, will remain a "private" way until it is accepted by Town Meeting, it nonetheless remains under the exclusive control of the Town. As such, the general public has rights to use the constructed way as access and abutting property owners may claim it as frontage. By accepting the easement, the Town has taken the necessary governmental action to create those public rights. As my associate Judith Cutler discussed with you, a challenge to Nelson's rights to use and improve the easement ultimately must be defended by Nelson. I understand, however, that the Town wishes to assist Nelson in making his landlocked parcel buildable. To this end, the Town Manager, in a letter dated June 4 , 1990, has given Mr. Nelson permission to construct a road within the Town's easement. Should the Town wish to make clear that the Town's delegation of authority to construct the roadway also includes the permission to incorporate the .Town's easement as part of the street right-of-way layout, I recommend that the enclosed draft letter be issued to Mr. Nelson. Please do not hesitate to contact me or my associate, Judith Cutler, should you have any further questions in this regard. Very truly yours, ;oel B. Bard JBB/JCC/va cc: Town Manager Board of Selectmen BK224X Poe Construction Co., Inc, , a corporation dui established under the laws of 1 hssachusettg y and having Its usual place Uiittier Terrace,place of business at ,j;,•� of West Wxford, Essex County, Maasachurettr, In tonsldrirJ fbZ o w t"red Eighty nine thousand Nine V"red and 00/100 i$289,'ua 96(? }(f+�; �-A '1 ©. Rapouo and Rrantr to Manuel . Priscilla As Rapoeo, huand and tifife# ae tenante by the entirety) both of f of Lot 7A, Penni Lane# tlort•h Andover ' with r;titttltlitq tsnrattttU the land in North Andover, Essex County, tdnssachusetts A certain parcel of land in North Andover, Essex County, Massachusetts, shown as lnt 7A.on a plan entitled, "Plan of imxi In1985'h.�over, lnnsishrecord, Pre pared for Scott Properties, Inc-, Dec, 10, p with Essex north Registry of Deeds as ed Piau1U12II, Reference is rrmde to said plan for a more particular description. Said premises is conveyed subject to a driveway easement as shown on said plan and as further described at Book 2099 Page 172, Reference is also made to plan 9755, which is a subdivision of lots on Plan 7215. Ln Z8 For grantor's title, see deed recorded at BooQ//•3 Page.ti,5 , Subject also to drainage easement as aho►m on raid plant v /,t^IJvit OF t+-ms"`CIII1sETTS AI it", �t u� �st • _ 3 a �n 9ilntaa lollertof the said Poe Construction Co., Inc, has caused Its corporate Beal to be hereto mixed and these presente to be ared, acknowledged and delivered in its name and behaif by WI.1I lam Johnson dayPresident/Treasurer hereto to the yearautboro o thousand nine Undred and eighty. six day of July . . Blgned and sealed In pretenot of Poe Construcy io Inc. By. 1J1 Liam J nson, President and Treasurer I K , I • t�htf�Ial�motlnnxlth>>f�tr!►il,�ctt,�I . . Essex, M, July 14, 1986 Then personally appeared the above named William Johnson, President and Treasurer of Poe Construction Co., Inc, and ultnowltdved the fore=oing Instrument to be the free sot and deed of the poe Construction Co., Inc. before iae Kenneth A. Cossingturm x� PWerr. My oommisdon explrea 9/4/ 1092 . Itaanrrtad ilu]y 1!`i,19F!Ei A.t 11 t n2AM //2080? HISTORY My wife Jane and I have been the owners of record of Lot #31 , now on Penni Lane, since 1966.• At the public hearing before the Planning Board held in the mid-seventies to consider approval of the Penni Lane subdivision, I and others inquired about the possibility of further development beyond the Penni Lane cul-de-sac. We were given to believe that the fifty-foot easement provided on the plan guarranteed that no obstacle to further development existed. It was clear to all present that the only lot which required an easement to provide access to the future public way created by the plan was lot 31 . Not until December 1987 , some twenty years later, did I attempt to market Lot 31 . At that time T learned that the recorded easement did not in fact relate to my lot in the way that I had been given to understand. Since then I have been following Planning Board and Planning Board staff advice with repeated assurances that what T took to be technical difficulties would ultimately be resolved and that lot 31 would be declared a buildable lot.' Twenty months have passed without resolution of the problem, and I am now turning to the Appeals Board for relief. GROUNDS 1 . The shape of the lot : The contours of the lot , a given at the time the plan was pro- posed , ( lot 31 was not created by the subdivision) remain as they were. The cul-de-sac as drawn in' relation to lot 10 creates a land- locked condition affording no access to Penni Lane , a public way. As such it is unusable. I am seeking a variance of the zoning bylaw with respect only to the frontage requirement. Lot 31 is a 3. 3 acre parcel , roughly triple the size of Penni Lane lots. The easement in question, which has been conveyed to the Town of North Andover, provides fifty feet of linear access. Accordingly, lot 31 , with more than three acres, qualifies as a frontage exception lot for a single-family dwelling. A driveway, and not a road , would be constructed over the area of the easement. On advice from Planning Board staff I have had tests done for deep water , perculation ( both passed ) and I have had the wetlands marked. Again the lot qualifies with respect to the re- quired proportion of dry land to wetland on a contiguous parcel , 2. Financial considerations : Pursuant to assurances over these twenty months that the problem would be resolved , I proceeded not only with the tests and wetland flagging, but I purchased in May of 1988 another residential property which I intend to become my primary residence in my retirement years. I am relying on the proceeds from a prospective sale of lot 31 to off- set costs connected with this purchase. if no relief is forthcoming I will have to give up these retirement plans and sell this property, forfeiting financing costs incurred to date plus any loss on the sell- ing price in this difficult market. g i ! €'i A r- low E ', v; K 10 to f son.zo r , . - 4 � 4 �.f-r5.�v,d_ ti �i 17FJ '�7�� ����{ram j.l.�iik•.,,: li l f .-R "{ E' r tj1.6. r i, ].5v_s ,c T�V r1 7 tand Ce} l.-1Gf4,�,.{al to 01 .'}l"A.•, fr.:ii.iT ie f r �P hi�s'j�.uon 281. 5 �ti; fi `� 15;��',y€�� fL„1,� ' .. F--; k ':,j Etc 4;: E.. i ?� � aat. i� � ,r✓ 3 - .9 SF` fps Spam J€o now Won ,,., J(1':5 r 10 �,�s�#�' o n j i 3 ,d �, `' } '. h. 1,�. •.r i)F.;u7�t, �J ry-� 'f7iYti,i s`I,1 'i' { `�-,��ifC of�, 5',�$ 7�1��x�,le� et�.�� : L .l 1 t;l, f.ttj ia1f ' �i� r�f! 9'1`A 1 # E - jtQ ;.i t s r' 1 f , zf i i lax (IuE"I v 46 ng New Home it �} :.�, i.�' �, --t � r .� ��, i) s�'.�y�,}1, 1Y�� r ` i:.. .i. IS�Y iC��l:�,•f }_'•p-••f.i r- ., � - ..•i�l; ,�;, �i� 'Sir° 7c r., 'I r.i'.. s.�.���•��+. r � r r 1' ,'r s y�t., .I � �•l r� r r r�..- _�! ,._ E .��Y"1..'i'6".Y��S,..,r`�{¢ rh_,. ,�i,tk7��li•j,.?1Y 1�1;� - r1 i .. �""! 1•�'. ��L'-ifs°�'"�g �..,E �,� :::�.{., i LEONARD KOPELMAN K©PELMAN AND PAIGE. P.C. PE BORAH A. ELkASON DONALD G. pA1GE JEANNE S. MCKNIGHT JUOITH C. CUTLER ELIZABETH A. LANE ' ATTORNEYS AT LAW ";ANN1 MARIE M. HYLAND JOYCE FRANK I JOHN W. GIORGIO 101 ARCH STREET ' i^ �! Iy 4 �f I - RICHARD BOWEN BARBARA J. SAINT ANDRE 1 \ I 1 1 CHERYL ANN BANKS JOEL B. BARD BOSTON. MASSACHUSETTS 1 yr1137 nAvro J. ooNESKI BRIAN W. RILEY EVERETT J. MARDER t BOSTON OFFICE y[ ,j -}� MARY L. G30AG10 PATRICK J. COSTELLO 16171 951.0007 i:'t �}5 (,) j.).1� 1(AT�-1 BEEN E. CONNOLLY JOSEPH L. TEHAN, JR. FAX 46171 951-2735 ;3 JOHN G. GANNON WILLLIAM HEWIG III NORTHAMPTON OFFICE �4 LKURT B. FLIEGAUF THERESA M. DOWDY 14131 585.B632 } { 0 i 4 - I M,iC1-1ELE !w. RANOAZZO KAREN V. KELLY WORCESTER bFFICE _b@, I y `1� :�.«>,1 y -.1"L�I 45081 752.0203 i April 6, 1994 Land Court Dept . of the Trial Court Room 408 old Court House Boston, MA 02108 Attention: Frank J. Richmond Re : Joseph DiBlasi, et al . v. Town of North Andover Planning Board and Charles Nelson Land Court Misc . Case No. 168351 Dear Mr. Richmond: Enclosed please find the Defendants' Joint Motion To Dismiss For Failure To Prosecute together with a Certificate of Service. Kindly schedule this motion for a hearing on April 20, 1994 at 10 : 00 a.m. Thank you for your cooperation in this matter. Very truly yours, Cheryl Ann Banks CAB/ma f Enc . CC : Planning Board Wayne L. Belair, Esq. Richard B . Villiotte, Esq. i '��. , ' PRINTED ON RECYCLED PAPER COMMONWEALTH OF MASSACHUSETTS ESSEX, SS . LAND COURT MISC. CASE NO. 168351 JOSEPH DIBLASI AND LUCILLE DIBLASI, Plaintiffs DEFENDANTS' JOINT v• MOTION TO DISMISS FOR FAILURE TO PROSECUTE GEORGE D. PERNA, JR. , JOHN SIMONS, JOHN DRAPER, JOSEPH MAHONEY AND RICHARD NARDELLA, PLANNING BOARD OF THE TOWN OF NORTH ANDOVER, { AND CHARLES NELSON, Defendants Pursuant to Rule 41 (b) 2 of the Massachusetts Rules of Civil 4 Procedure, the Defendant Town of North Andover Planning Board and Charles Nelson move this Honorable Court to dismiss the above- entitled action, with prejudice to the plaintiffs and with costs to the defendants . Rule 41 (b) 2 of the Massachusetts Rules of Civil Procedure provides : "On the motion of the defendant, with notice, the court may, in its discretion, dismiss any action for failure of the plaintiff to prosecute . . . . " Litigants must act with reasonable diligence to bring their litigation to a final conclusion. Bucchiere v. New England .Telephone„ & Telegraph Co. , 396 Mass . 639, 642 (1986) . The Court may in its discretion dismiss an action when the litigants have unreasonably failed, neglected or refused to prosecute. id. The plaintiffs filed this action on or about September 16, 1991, naming as defendants George D. Perna, Jr. , John Simons, John Draper, Joseph Mahoney, and Richard Nardella as members of 1 the Town of North Andover Planning Board, and Charles Nelson, the recipient of the Board' s subdivision plan approval . (See attached Exhibit A) . Thereafter, on October 3 , 1991 the Planning Board answered the complaint . (See attached Exhibit B) . The plaintiffs have made no attempt whatsoever to pursue this appeal in over two and one-half years, and have clearly failed to properly and diligently prosecute this action. The defendants have been prejudiced by the plaintiffs' delay. Individuals who were members of the Planning Board at the time this action was commenced no longer hold office in the Town, making defense of the Board' s decision more difficult . In addition, the plaintiffs' delay has prejudiced the co-defendant Nelson by preventing him from developing his land as approved. For the reasons stated, the defendants move that this Honorable Court allow their Motion to Dismiss For Failure To Prosecute . :j CHARLES NELSON TOWN OF NORTH ANDOVER PLANNING BOARD By his attorney, By its attorneys, 6i�r Wayne/L. Belair, E q. Joel B Bard (BBO #029140) Belau & Zipeto Cheryl A. Banks (BBO #550751) 237 Essex Street Kopelman and Paige, P. C. Lawrence, MA 01840 Town Counsel (508) 683-5003 101 Arch Street Boston, MA 02110 (617) 951-0007 S 9 ♦ 'f yy l � i I I CERTIFICATE OF SERVICE I , Cheryl. Ann Banks, hereby certify that on the below date, I served a copy of the foregoing Notice of Appearance, by mailing a copy, postage prepaid to the following counsel of record: Wayne Belair, Esq. Belair & Zipeto 237 Essex Street Lawrence, MA 01842 Richard B . Villiotte, Esq. 216 Beach Street Revere, MA 02151 Cheryl Pdn Banks Dated: ii i Inter-Office Memorandum To: Kathleen Janet From: Karen N. Date: July 25, 1994 Re: Penni Lane - Nelson, Charles Attorney Wayne Belair represents Charles Nelson regarding the Penni Lane one lot subdivision. Based on a conversation I had with him today all parties have resolved the litigation and a Court Decree is forthcoming. Mr. Nelson does not have the mylar. I would like Janet to see if we had it in our office. I told Belair that more than likely we did not have it. Also I would like Kathleen to look in the subdivision file to determine what needs to be done in order that Mr. Nelson can obtain a building permit to sell the lot. I told Mr. Belair that Kathleen will be the contact person in the future. If either one of you can look to see if we have the mylars, call him at 683-5003 late Tuesday afternoon. a 1 t i JWo� lAA° Onj /,( ipeto Attorneys ant LAw 237 Essex Street, P,0. Box 401 LaWPCIECC, d'4aSQf1C ltUSCtt9 01942 (508) 794-4898 (508) 683-5003 I'ax; (508) 794-0012 � L L. B�pelau r ILK 4�Ta�ne ppW Ellen A. Gipeto July 26 , 1994 Ms. Kathleen Colwell Town Planner Town of North Andover 120 Main St. No. Andover, MA. 01845 Re: Land of Charles and Jane Nelson Penni Lane Dear Ms. Colwell: Pursuant to our telephone call, I have enclosed a copy of the relevant plan. Kindly schedule our office for an appearance with the Planning Board on August 16 so that we may have the said plan endorsed. The DiBlasi appeal, which had been holding up this matter, has been settled, and I expect to receive a Decree from the Land Court, prior to August 16, which will forever silence that issue. Should you have any questions or comments prior to August 16, please call me or Attorney Zipeto at your earliest convenience. Sincerely, Wayne Belair, Esq. WLB/pn enc. 41 .AREN H.P. NELSON ear TOWri of 120 Main Street, 01845 Director NORTH ANDOVER (508) 682-6483 BUILDING s,''^•::, .g CONSERVATION ss,°"p6�s DIVISION OF PLANNING PLANNING & COMMUNITY DEVELOPMENT July 28 , 1994 Wayne L. Belair, Esq. Belair and Zipeto 237 Essex Street P.O. Box 401 Lawrence, MA 01842 Re: Land of Charles and Jane Nelson Penni Lane Dear Attorney Belair, Thank you for sending a copy of the plan for the Nelson property. Unfortunately it is not the correct plan. The definitive subdivision approval references a plan entitled "Driveway Improvement Plan on Penni Lane in North Andover, MA" ; prepared for Charles Nelson; dated August 21, 1990, rev. 6/27/91; prepared by Christiansen & Sergi. This plan must be presented to the Planning Board for endorsement. I have enclosed a copy of the Planning Board decision as well as a FORM I Covenant. If you have any questions please call me at 682-6483 ext. 24 . I will be in the office on August 8 and 9 and then again on the 15th. Sincerely, Kathleen Bradley ColwLl Town Planner CC. K. Nelson, Dir PCD 1 FORM z COVENANT 19 MA KNOW ALL MEN by these presents that the undersigned has submitted an application dated , to the NORTH ANDOVER PLANNING BOARD for approval a Definitive Plan of a subdivision of land entitled: , plan by: r dated: owned by: , address: , land located: , and showing proposed lots. The undersigned has requested the Planning Board to approve such plan without requiring a performance bond. IN CONSIDERATION of said Planning Board of NORTH ANDOVER, in the county of ESSEX approving said plan without requiring a performance bond, the undersigned hereby covenants and agrees with the inhabitants of the town as follows: 1 . That the undersigned is the *owner in fee simple absolute of all the land included in the subdivision and that there are no mortgages of record or otherwise on any land, except for those described below, and that the present holders of said mortgages have assented to this contract prior to its execution by the undersigned. *If there is more than one owner, all must sign. "Applicant" may be an owner or his agent of record must sign the covenant. 2 . That the undersigned will not sell or convey any lot in the subdivision or erect or place any permanent building on any lot until the construction of the ways and installation of municipal services necessary to adequately serve such lot has been completed in accordance with the covenants, conditions, agreements, terms and provisions as specified in the following: a. The Application for Approval of Definitive Plan (Form C) . b. The Subdivision Control Law and the Planning Board ' s Rules and Regulations governing this subdivision. 1 of 5 i tions of The Certificate of Approval and the othe�Planning c• issued by approval. specified therein, Board, dated The Definitive Plan as approved and as qualified by Certificate of Approval. roval. e. Other document(s) specifically construction to be completed, namely, gaged However, a mortgage who acquires title to the succeeding premises by foreclosure or otherwise an an thereof may owner of the mortgaged premises or p portion of sell or convey any lot, subject only to that p or this covenant which provided n until ways and services ces conveyed or shall be b p have been provided to serve such lot. 3 , That this covenant shall be binding upon the executors, administrators, devisees, heirs, successors and assigns of the undersigned nancluded in shall is�onnand running with the land shall operate as restrictions upon the land. ts within thesubdivision l be 4 . That particular lo conditions upon he released from the foregoing recording of a certificate of performance executed by majority of the Planning Board and enumerating the specific lots to be released. in shall be deemed to prohibit a 5 . That nothing here a sin le deed subject to this covenant, conveyance by g parcel of land shown on the of either the entire p reviously released subdivision plan or Boarof d all lots not p by the Planning 6 . That the undersigned agrees unty Registry record sofoDeedst with the a the necessary recording fees to forthwith, or to P y Board Board in the event the Planning the said Planning forthwith. Reference to shall record this agregiment on the Definitive this covenant shall be entered up , Subdivision Plan as approved. 1, art of the subdivision in violation o 7 . A deed or any A the grantee prior to j the covenant shall be voidable by j' the release of the covenant; but not lat�rprov three idedin (3) years from the date of such deed,. a Cha ter 41, M.G. L. Section 81-U, p 2 of 5 f i 8 . That this covenant shall be executed before endorsement of approval of the definitive plan by the planning Board and shall take effect upon the endorsement of approval . Said covenant shall expire two years from the date of the endorsement of the definitive plan. 9 . Upon final completion of the construction of ways and installation of municipal services as the specified d herein, Plani Board on or before ► shall release this covenant by an appropriate instrument, duly acknowledged. Failure to complete construction and installation within the time specified herein or such later date as may be specified by vote of the Planning Board with a written concurrence of the applicant, shall result in automatic rescission of the approval of the plan. Upon performance of this covenant with respect to any lot, the Planning Board may release such lot from this covenant by an appropriate instrument duly recorded. 10 . Nothing herein shall prohibit the applicant from varying the method of securing the construction of ways and installation of municipal services from time to time or from securing by one, or in part by one and in part by another of the methods described in M.G. L. , Chapter 41, section 81-U, as long as such security is sufficient in the opinion of the planning Board to secure performance of the construction and installation. For title to 'the property, see deed from recorded in _ dated ___ ---► -- -- �� � � Registry of Deeds, Book ► Page , or registered in Land g _ __ and noted on Registry as Document No . _ ^w ► certificate of title No. and noted on certificate title No. , in Registration Book + Page The present holder of a mortgage upon the property is . of The mortgage is dated and recorded in Registry of Deeds, Book + or registered in Land Page Registry as Document No. + and noted on certificate of title no. , in Registration Book , Page . The mortgagee agrees to hold the mortgage subject to the covenants set forth above and agrees that the covenants shall have the same status, force and effect as though executed and recorded before the taking of the mortgage and. further agrees that the mortgage shall be subordinate to the above covenant. 3 of 5 spouse of the undersigned applicant hereby agrees that such interest as T, we, may have in the premises shall be subject to the provisions f ofis tenancycove and the nt insofar as is necessary releasesrights dower of homestead and other interest therein. . IN WITNESS WHEREOF we gave hereunto set our hands and seals this of , 19 owner Spouse of Owner Mortgage Acceptance by a Majority of the Planning Board of COMMONWEALTH OF MASSACHUSETTS , ss , 19 Then personally appeared before me the above named and acknowledged the foregoing instrument to be free act and deed. Notary Public My Commission Expires: COMMONWEALTH OF MASSACHUSETTS , ss , 19 Then personally appeared before me the above named and acknowledged the foregoing instrument to be free act and deed. Notary Public My Commission Expires: 4 of 5 r COMMONWEALTH OF MASSACHUSETTS tss , 19 Then personally appeared before me the above named and acknowledged the foregoing instrument to be free act and deed. Notary Public My Commission Expires: COMMONWEALTH OF MASSACHUSETTS ! ss 19 Then personally appeared before me the above named and acknowledged the foregoing instrument to be free act and deed. Notary Public My Commission Expires: 5 of 5 Notice to APPLICANT/TOWN CLERK and Certification of Action of Planning Board on Definitive Subdivision Plan entitled: "Plan of Land in North Andover MA prepared for Charles G. & Jane A Nelson" By: t 'a s .n & Seri dated Au ust 21 1990 l9 Revised June 27, 1991 The t;orth Andover Planning Board has voted to APPROVE said plant subject to the follo:dn? conditions: 1. That the record owners of the subject land forthwith execute and record a "covenant running with the land", or otherwise provide security for the con— struction of ways and the installation of municipal services within said sub•- diAsiont all as provided by G.L. c. 41t S. 81—U. 2. That all such construction and installations shall in all respects confom� to the governing rules and regulations of this Board. 3. Thatt as required by the North Andover Board of Health in its report to this Board, no building or other structure shall be built or placed upon Lots No. as shown on said Plan without the prior consent of said Board of Health. 4. Other conditions; in the event that no appeal shall have been taken from said approval within twenty days from this date, the North Andover Planning Board will forthwith thereafter endorse its formal approval upon said plan. NORTH A=VM PLANNITp BOARD Date: August 28, 1991 By: George na, Jr. , Chairman FORM C APPLICATION FOR APPROVAL OF DEFINITIVE PLAN S I- March 19 91 To the Planning Board of the Town of North Andover: The undersigned, being the applicant as defined under Chapter 41, Section 81--L, for approval of a proposed subdivision shown on a plan entitled "Plan: of Land in North Andover Ufa prepared for Charlds G. & .lane A. Nelson" by Ci.ristiansen & Serci dated August 21 . 1990 being land bounded as follows: see Exhibit A attached hereby submits said plan as a DEFINITIVE plan in accordance with the Rules and Regulations of the North Andover Planning Board and makes application to the Board for approval of said plan. Title Reference: North Essex Deeds, Book 11065 , Page 320 ; or Certificate of Title No. _, Registration Book-t page r or Other: Said plan has( ) has not(x,� evolved from a preliminary plan submitted to the Board of lq and approved (with modifications) ( ) disapproved (j on t lq The undersigned hereby applies for the approval of said DEFINITIVE plan by the Board, and in furtherance thereof hereby agrees to abide by the Board's Rules and Regulations. The undersigned hereby further covenants and agrees with the Tot-m of North Andover, upon approval of said DEFINITIVE plan by the Board: 1, To install utilities in accordance with the rules and regulations of the Planning Board, the Public Works Department, the Highway Surveyor, the Board of Health, and all general as well as zoning by-laws of said Town, as are applicable to the installation of utilities within the limits of trays and streets; 2. To complete and construct the streets or Kays and other improvements shown thereon in accordance with Sections Iv and V of the Rules and Regulations of the Planning Board and the approved DEFINITIVE plan, profiles and cross sections of the sage. Said plan, profiles, cross sections and construction specifications are specifically, by reference, incorporated herein an&,gi.ade a part of this application. This application and the covenants and agree- ments herein shall be binding upon all heirs, executorst administrators, successorst grantees of the whole or part of said land, and assigns of the undersigned; and 3. To complete the aforesaid installations and construction within two (2) years from the date hereof. 11 rr, } �`�•o V � ���� Received by To-am Clerk: (� Signature of Applicant Date: 31 Gray Street Time: North Andover , MA 01845 Signature: Address EXHIBIT A Beginning at a point in the radius of a ciicle at the end of Penni Lane thence turning and running N510 11' 34"ill, 252.54 feet,- thence turning and running N490 44' 59,m, 104.15 feet to an iron pipe; thence turning and running :d36 37' 31"E, 264.38 feet and thence N500 24' 03"E, 184.43 feet , the last two hounds being the center line of a stream;thence turning and running o S 230 56 ' 26"E , 463 .16 feet; thence turning and running N85 39 ' 29"4i, 165 . 14 feet. thence turning and running S06 48' 30"W, 52.12 feet; thence turning and rur,ni 5 5190 14' 45" 1; 64.69 feet; thence turning and running S310 25 ' 35"W 37 .39 feet to the point of beginning. Charles Nelson 31 Gray Street North Andover, MA. 01845 DEFINITIVE SUBDIVISION CONDITIONAL APPROVAL STATEMENT OF FINDINGS The Planning Board, in approving this conditional Definitive Subdivision application, has granted waivers in the construction of the proposed roadway. The applicant has proposed a roadway built to driveway specifications across the future roadway easement area located on lot 10, Penni Lane. Any further reference to the proposed driveway shall be meant to include the roadway located within the easement area. The applicant has chosen to take advantage of the frontage exception bylaw (Section 7.2 of the North Andover Zoning Bylaw) which allows for a minimum of fifty (50) feet of frontage with three times the required minimum lot size_ Section 7.2 (1) e. of the Zoning Bylaw further states that "no such lot. . . on which a dwelling is located shall be hereafter reduced in area below the minimum area required. . . " which insures that only one single family dwelling may be constructed on the proposed lot containing 3 . 02 acres. Any future modification of this subdivision to create a road under the standards of subdivision control shall require a resubmittal to the North Andover Planning Board Office. CONDITIONS OF APPROVAL 1. There shall exist across the property line abutting n/f DiBlasi a sixty (60) foot no cut buffer zone. The No Cut Zone shall exclude all necessary clearing and regrading for the construction of the proposed driveway and septic system,; and There shall exist across the rear property line n/f Fanuele a twenty (20) foot no cut buffer zone to the inside corner of the vegetative buffer as noted on said plan (provided it does not interfere with the driveway location as showo,. ) 2 . The proposed driveway shall be paved for its entire length. 3 . All construction which takes place within the easement area shall not adversely impact the driveway servicing the property of DzBlasi. Any damage done to an abutting properties driveway shall be repaired by the applicant prior to the issuance of a Certificate of Occupancy. 4 . Prior to the lot being released from the statutory covenant, a Bond shall be posted to ensure construction and/or completion of roadway, site screening and other pertinent public amenities. This bond shall be in an amount as determined by the Planning Board and shall be in the form of a Tri-Party Agreement, or Pass Book. 5. An as-built plan and profile shall be submitted for review and approval prior to the final release of bond money. Certification by the design engineer, verifying that all utilities have been installed in accordance with the plans and profile shall be submitted prior to the application of the binder coat of pavement. In addition, all required inspection and testing of water, sewer, and drainage facilities shall be completed prior to binder course paving. 6. Any changes on the plans required by the North Andover Conservation Commission may be subject to Modification under Chapter 41 by the Planning Board. Approval by the North Andover Conservation Commission must be obtained prior to the issuance of a building permit. 7 . Gas, Telephone, Cable and Electric utilities shall be installed as specified by the respective utility companies. a. No open burning shall be done except as is permitted during burning season under the Fire Department regulations. 9. No underground fuel storage shall be installed except as may be required by Town Regulations. 10 . Prior to the release of any lot from the statutory covenant the developer shall submit approved septic system designs to the Planning Board and certify that the proposed grading of said lot is in conformance with the Definitive Plan and drainage calculations, and that said lot does not create adverse flooding on an adjacent property. 11. The contractor shall contact Dig Safe at least 72 hours prior to commencing any excavation. 12 . Prior to a Building Permit being issued for the lot, the following information shall be required by the Planning Department: A. All No Cut Zones shall be clearly delineated in the field with flagging tape. B. All erosion control measures shall be installed and checked by the Town Planner. C. The lot number shall be posted prior to the commencement of construction. 13 . Prior to a certificate of occupancy being issued for the lot, the following information shall be required by the Planning Department: A. All necessary permits and approvals shall be secured from the North Andover Board of Health. B. As-built topographic plans of the individual lot showing location and final grading for all driveways, structures and septic systems. C. The proposed dwelling shall have residential fire sprinklers installed. Certification and approval from the N.A.F.D. shall be required. D. A permanent house number shall be posted prior to occupancy. E. Certification that the roadway is constructed to at least binder coat to properly access the lot in question. 14 . The provisions of this conditional approval shall apply to and be binding upon the applicant, its employees and all successors and assigns in interest or control. 15. All construction and activity on the lot shall conform with the following set of plans which have been presented to the Planning Board and approved with the above list of conditions: APPLICANT: Charles Nelson, 31 Gray St. North Andover, MA pLANS PREPARED BY: Christiansen & Sergi DATE: August 21, 1990• rev. 6/27/91 SCALE: 1" = 40 ' cc: Director of Public Works Building Inspector Health Adm/Sanitarian Assessors Conservation Administrator Police Chief Fire Chief Applicant Engineer File j f FORM I COVENANT 1I 1W5 0 , 19 9� 41ow E MA KNOW ALL MEN by these presents that the undersigned has submittANDOVERed an PLANNINGIiBOARDn far ea approval a+ 1D9, ,1 ' to the NORTH pp efinitive Plan of a subdivision of land entitled: ?4,A) ,a ,4„4Ajb ,N 1VA4 0V vUti�sfii�1 plan by: lLelirl.4,05eAj ' ,56,Q E s dated-." EY lsEl owned by: address-: N a7,r 1 7 Ai land located: and showing proposed lots. The undersigned has requested the Planning Board to approve such plan without requiring a performance bond. IN CONSIDERATION of said Planning Board of NORTH ANDOVER, in r . the county of ESSEX approving said plan without requiring a performance bond, the undersigned hereby covenants and agrees ' with the inhabitants of the town as follows: C� 1. That the undersigned is the *owner in fee simple absolute of all the land included in the subdivision and that there are no mortgages of record or otherwise on any land, except for those described below, and that the present holders of said mortgages have assented to this contract prior to its execution by the undersigned. *If there is more than one owner, all must sign. "Applicant" may be an owner or his agent of record must sign the covenant. 2 . That the undersigned will not sell or convey any lot in the subdivision or erect or place any permanent - - building on any lot until the construction of the ways and installation of municipal services necessary to adequately serve such . lot has been completed in accordance with the covenants, conditions, agreements, terms and provisions as specified in the following: a. The Application for Approval of Definitive Plan (Form C) . b. The Subdivision Control Law and the Planning Board' s Rules and Regulations governing this subdivision. 1 of 5 6 1 ns of c. The Certificatespecified ecif i d therein, i issued by the Planning tiO approval . p Board, dated u 9 d. The Definitive Plan as approved and as qualified by Certificate of Approval.. e. Other document(s) specifically construction to be completed, namely, However, a mortgage who acquires title to the mortgaged premises by foreclosure or otherwise and any succeeding owner of the , mortgaged premises or part thereof may sell or convey :any lot, subject only to that portion of this covenant which provided that no lot be sold or conveyed or shall be built upon until ways and services have been provided to serve such lot. 3 . That this covenant shall be binding upon the executors, administrators, devisees, heirs, successors and assigns of the undersigned and shall constitute a covenant running with the land included in the subdivision and shall operate as restrictions upon the land. 4 . That particular lots within the subdivision son l be the released from the foregoing conditions up recording of a certificate of performance executed by a majority of the Planning Board and enumerating the specific lots to be released. 5 . That nothing herein shall sub ect to this be deemed to rohibit covenant� conveyance by a single de of either the entire parcel of land shown on the subdivision plan or of all lots not previously released by the Planning Board. 6 . That the undersigned agrees to record this f covenant with the County Registry o forthwith, or to pay the necessary recording fees to the said Planning Board in the event the Planning Board shall record this agreement forthwith. Reference to this covenant shall be entered upon the Definitive Subdivision Plan as approved. 7 . A deed or any part of the subdivision in violation of the covenant shall be voidable by the grantee prior to the release of the covenant; but not later than three (3) years from the date of such deed,. as provided in section 81-U, Chapter 41, M.G.L. 2 of 5 i 1 8 . That this covenant shall be executed before endorsement of approval of the definitive plan by the planning Board and shall take effect upon the endorsement of approval. Said covenant shall expire two years from the date of the endorsement of the definitive plan. 9 . Upon Final completion of the construction of ways and. installation of municipal services as specified herein, on or before , the Planning Board shall release this covenant by an appropriate instrument, duly acknowledged. Failure to complete construction and installation within the time specified herein or such Later date as may be specified by vote of the Planning Board with a written concurrence of the applicant, shall result in automatic rescission of the approval of the plan. Upon performance of this covenant with respect to any lot, the Planning Board may release such lot from this covenant by an appropriate instrument duly recorded. 10 . Nothing herein shall prohibit the applicant from varying the method of securing the construction of ways and installation of municipal services from time to time or from securing by one, or in part by one and in part by another of the methods described in M.G.L. , Chapter 41, Section 81--U, as long as such security is sufficient in the opinion of the planning Board to secure performance of the construction and installation. For title to the property, see deed from dated recorded— , recorded in ESS �K Registry of Deeds, Book Page 3alo or registered in Land Registry as Document No . , and noted on certificate of title No. , and noted on certificate of title No. , in Registration Book Page The present holder of a mortgage upon the property is NOiVC of The mortgage is dated and recorded in Registry of Deeds, Book , Page or registered in I Land Registry as Document No. , and noted on certi icate of title no. , in Registration Book , Page . The mortgagee agrees to hold the mortgage subject to the covenants set forth above and agrees that the covenants shall have the same status, force and effect as though executed and recorded before the taking of the mortgage and further agrees that the mortgage shall be subordinate to the above covenant. 3 of 5 1 K/,` �Fll,[LE3� Ne�soN Aka ,7Arvc,4. NF4%PAI , applicants hereby agreeW that such interest as x, we, may have in the premises shall be subject to the provisions of this covenant and insofar as is necessary releases all rights of tenancy by the dower of homestead and other interest therein. IN WITNESS WHEREOF a gave hereunto set our hands and seals this of 19 owner C 44, LgS ,. NsLsax! � �— 'n O e r ,TANE ./VEG SOS/ Mortg ge Acceptance by a Majority of the Planning Board of 1VOk.Tff 4A)D0Vre COMMONWEALTH OF MASSACHUSETTS / �S SEX r ss ,4/,047- /6 , 19 9Y Then personally appeared before me the above named �yAR�si,•Ns�v., a& 4.4,iGSoy and acknowledged the f regoing instrument to be free act and deed. Notary PubAlic 4L. ,4,,F7l� My Commission Expires: ai 'gm COMMONWEALTH OF MASSACHUSETTS 19 Then personally appeared before me the above named -Sp50:'7:PR and acknowledged the foregoing instrument to be �j_�. _ free act and deed. ntary Public Z�We7 L. GA-WA) My Commission Expires: q 4 of 5 COMMONWEALTH OF MASSACHUSETTS F4 ,ss ... A(��vsr 19 Then personally appeared before me the above named e1Cff A _A16rc-NaLA and acknowledged the foregoing instrument to be 14t5 free act and deed. Lary Public JA1vt:V- My Commission Expires: ot COMMONWEALTH OF MASSACHUSETTS FS5C , ss A060S7` -16t 19 Then personally appeared before me the above named !C S )&W GGU _ and acknowledged the foregoing instrument to be free act and deed. otary Public ,:�-AA/0- L. eA7-0/U My Commission Expires: _, 7 r 5 of 5 _ 1 FORM J LOT RELEASE r r\ The undersigned, being a/�lajority of the Planning Board of the Town ,! of North Andover, Massachusetts, hereby certify that: !f a. The requirements for the construction of ways and municipal services called for the Performance Bond or Surety and dated 19 and/or by the Covenant dated 19 and recorded in District Deeds, or registered in Land Registry District as Document No. and noted on Certificate of Title No. in Registration Book , Page has been completed/partially completed, to the satisfaction of the Planning Board to adequately serve' the enumerated lots shown on Plan entitled " Sec ion (s) Sheets Plan dated el , 19 5/e*ceded by the 141AIA4 Registry of Deeds, Plan Book or registered in said Land Registry District, Plan 50�1- -rZ , Plan , and said lots are hereby released from the restriction as to sale and building specified thereon. Lots designated on said Plan as follows: (Lot Number (s) and street(s) ) 1/71 b. (To be attested by a Registered Land Surveyor) I hereby cert i f that lot number (s) on 3� 11-.7/ ,4,-ea Pi Street(s) do conform to layout as shown on Definitive Plan entitled Section ree 'r �'uJ� � ���roi����� �� Registers Lartt� 'S e�br d n3 / r� t 1 of 2 t i- - �•�!1 �,� l�/sue � 1 C. The Town of North Andover, a municipal Corporation situated in the County of Essex, Commonwealth of Massachusetts, acting by its duly organized Planning Board, holder of a Performance Bond or Surety dated , 19 , and/or Clove ant dated S , 19 from r�� G of the City/Town ofAI ss�. , County, Massachusetts recorded with the ZL6,r Z District Deeds, Book , Page or registered in Land Registry District as Document No. + and noted on Certificate of Title No. , in Registration Book, , Page , acknowledges satisfaction of the terms thereof and hereby releases its right, title and interest in the lots designated on said plan , as follows: EXECUTED as a sealed instrument this /�� day of �UC�USr 19 Majority of the Planning Board of the Town of North Andover 1 COMMONWEALTH OF MASSACHUSETTS ss 4U(sUS1 /6 , 19 Then personally appeared RICHAed A. N4eb6tc4 ► one of the above members of the Planning Board of the Town of North Andover, Massachusetts and acknowledged the foregoing instrument to be the free act and deed of said Planning Board, before me. hII otary Public SROJ6' ,,L. "-M4) /My Commission Expi,^es,', 2 of 2