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HomeMy WebLinkAbout1985-09-09 Legal Correpsondence DEF SUB 1 OFFICE OF f TOWN COUNSEL ELLIS BUILDING 95 MAIN STREET TOWN OF NORTH ANDOVER, MASSACHUSETTS 01845 NORTh 3�Oyas co ,a'9q.o L RALPH R.JO'YCE TOWN COUNSEL % t F (617) 685-4555 o9p^•w l/b^fV?y'�5 M�ss:ackusEc June 12, 1985 AN 13 1985 CANNING BOARD Planning Board MICHAEL ROBERTS, CHAIRMAN 120 Main Street North Andover, MA 01845 RE: STONECLEAVE ROAD, BOXFORD FOREST STREET, NORTH ANDOVER BIGGIO PROPERTY Dear Sirs: I am in receipt of your letter of June 6, 1985 regarding the above referenced property, and presume the question before the Board is whether to grant Form A approval or to require subdivision control under Chapter 41. Whether the property is entitled to Form A approval is defined in MGLA Chapter 41, Section 81L which provides " . . . that the division of a tract of land into two or more lots shall not be deemed to constitute a subdivision within the meaning of subdivision control law if, at the time when it is made, every lot within the tract so divided has frontage on a. public way or a way which the clerk of the city or town certifies is maintained and used as a public way, or b. a way shown on a plan theretofore approved and endorsed in accordance with subdivision control law, or c, a way in existance when a subdivision control law became effective in the city or town in which the land lies, having, in the opinion of the planning board, sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby, and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon. " I reviewed Article 52 of the annual Town Meeting of 1929 together with the Acts of the County Commissioners in 1929 referenced as C.C.D.1627 and conclude that the Planning Board' s jurisdiction with respect to paragraphs a and b is confused. I 1 advise that you proceed under paragraph c only if your Board is inclined to make the subjective determination that the road is adequate for the use which it is intended. This provision of the law has ample precedence in the Town of North Andover but is little understood, and I therefore presume that it will be considered "controversial" . The concerns set out in your letter regarding fire, police and highway department services cannot be effected unless a covenant running with the land is recorded in the Registry of Deeds. The covenant should also provide for any ungrading that the highway surveyor may require on the road. Additionally, this office has negotiated with the Building Inspector ' s office for easements expanding the width of Forest Street to accomodate an alinement with Stonecleave Road as the way enters Boxford and for road widening purposes on that portion in North Andover. To date this easement has not been granted. I conclude that the Board has authority to grant Form A approval but emphasize that it is the Planning Board' s subjective determination as to whether the road meets the requirements of paragraph c. Alternatively, if the Board declines to make such a determination, then subdivision approval could be imposed. Very u1 your -Rlph I . J e Town Counse RRJ:mj j HAYES, L.EDOUX, WHIPPLE & KING, RC. ATTORNEYS AT LAW GEORGE H.W.HAVES,n 25 MARKET STREET SALEM OPPICE: '. ROBERT A.LEOOUX 49 FEDERAL STREET JOHN A.WHIPPLE P. O. BOX 206 1PSWICH MASSACHUSETTS 01936-0206 SAL EM, MASSACHUSEi T5 01970-3469 JOliN G. ,.KING '. DONALD M.GREENOUGH AREA CODE 617 AREA CODE 617 CELESTE R.NIARCH05 356-2933 745-3363 E.JAMES KROESSER LISA A.JACOBOWiYZ August 13th, 1985 Town of North Andover Planning Board Department 120 Main Street North Andover, MA in ret Forest Street, North Andover/Stonecleave Road, Boxford To the Members of the North Andover Planning Board: Please be advised that I represent Mr. John Biggio, prospective purchaser of a 5-acre parcel of property located at the above referenced address. I enclose for your convenience a draft copy of the 5-acre parcel. and a proposed new lot line creating two building lots in North Andover. As you are aware, my client wishes to obtain Form A endorsements of the Planning Board (approval under the subdivision control law not required) for the two lots, as opposed to submitting a complete subdivision plan. To this end, my client has gone to great lengths to satisfy your concerns regarding the condition of Forest Street and recommended improvements thereto. While I believe it is clear that the legal status of Forest Street is in doubt, as evidenced by your Town Counsel ' s letter dated June 12, 1985, a copy of which I also enclose, by the same token, it is also clear that your board has the authority to approve a Form A plan so long as improvements to Forest Street meet with your approval, Again, I refer to Town Counsel 's June 12th letter. This has been our stated intention since the beginning, and my client remains willing to upgrade the road to your satisfaction and to that of William A. Cyr, the Highway Surveyor . In this regard, I enclose a copy of Mr. Cyr 's letter to the Board dated August 51 1985, which we will comply with in all respects, if our Form A plan is endorsed by you. Town of North Andover page -2- August 13th, 1985 Finally, with respect to the plans which we intend to submit, I wish to point out that both of the building lots we are seeking meet the frontage and area requirements of North Andover, and al.-I. necessary frontage and area is located within the town of North Andover. we are not relying on any of the property in Doxford for either frontage or area. We have been to the Boxford Planning Board on an informal basis, and have fully explained this situation to them, and we were assured that we would have no trouble obtaining their "Approval not Required" endorsement on our plan, subject only to the provision that the property in Boxford would not be built upon. Thank you for your consideration in this matter. Very truly yours, E. James Kroesser, Esquire lal #2181 Enc. cc: William A. Cyr Town of North Andover, Highway Surveyor 384 Osgood Street, North Andover, MA 01845 HAYIS, LE DOUX, W141PPLE & KING, F).C, ATTORNEYa AT LAW OF-ORW H.W.HAYU-1.u 25 MARKET STREET SALEM OFFICE: RGB"T A.LEDOUX P.O. E3llX lob 49 t=EI7ERAL STREET A.WHPP s JC1Ftl'7 O.KMIPSWICH. MASSACHUSE I'S o153[3-pZOf, SAL EM, MASSACHU:;CTTS OWO-3469 ',. DCNALD M.c3AEENOUGH AREA CODE 617 AREA CODE 617 CELESTE R.MARCHOS 356-2933 745-3363 E.JAMES KROESSCR USA A.JACOBOW1TZ September 6th, 198,5 VIA/HAND DELIVERY Ms. Karen Nelson Office of Town Planner Town of North Andover Town Hall North Andover, MA re: John J. Biggi.o and Eileen M. Biggio/Forest Street, North Andover, MA Dear Karen: As per our numerous phone conversations, I am enclosing for your review the following : 1. Form A application; 2 . Plan; 3. Covenant; 4. Deed of Easement.; 5. Copy of Quitclaim need; and 6. Copy of Subordination Agreement. As per your instructions, there are four complete sets of all documents enclosed herewith. Any originals not provided with this letter will be submitted Monday night at the hearing. As I explained, the property is not being transferred until approximately October 15, 1985, which is why I am holding the original, deed and subordination agreement. If you have any questions, please call me either this, afternoon, or any time Monday. Thank you for your cooperation throughout this entire matter. ��, y truly yours, E. : ties Kroessex lal Enc. ;y CQVBNANT re: Stonecleave Road, Boxford, and Forest Street, North Andover, MA Parties: Town of North Andover Planning Board William E. Bingham and Cynthia J. Bingham, (Owners) John J. Biggio and Eileen M. Biggio, (Applicants) Dated: September 9th, 1985 Covenant made this 9th day of September, 1985 by and between the above named Owners, Applicants and Town of North Andover, Planning Board. Whereas, the undersigned Owners and Applicants have submitted a plan in accordance with M.G.L. Chapter 41, Section 81-P, requesting that said plan be endorsed by the Planning Board "approval under the subdivision control law not required" ; and Whereas, said Plan is entitled "Plan of band in North Andover and Boxford, MA (Essex County) Surveyed for John J. and Eileen M. Biggio, dated September 6th, 1985" ; and Whereas, said Planning Board has been unwilling to grant said endorsement without certain :improvements being made to the above-referenced Forest Street in North Andover, and repair, maintenance, and upkeep of :paid road being allocated to Owners and/or Applicants. Now, therefore, in consideration of said Planning Board of North Andover endorsing said Plan, "approval under the subdivision control law not required" , the undersigned Owners and Applicants hereby covenant and agree with said Planning Board and with the Inhabitants of the Town of North Andover as follows: A. That the undersigned owners hold title in fee simple absolute to all of the land included on said Plan and that: Lots A and B are to be conveyed to the Applicants on or before December 30, 1985, and that the within covenants, when recorded, shall have priority over any mortgage or mortgages presently existing on any of the land shown on said plan. B. That the undersigned Owners and/or Applicants will not apply for any building permit, nog- erect or place any permanent building on any lot shown on said plan ' r until the construction and improvement of Forest Street is completed in accordance with a certainletter from the Town of North Andover Highway Surveyor 's Office dated October 5, 1985, a copy of which is attached hereto as Exhibit A. C. Completion of said improvements to the satisfaction of said Highway Surveyor shall be evidenced by a Certificate suitable for recording and shall be so recorded at Owners ' or Applicants ' expense prior to the issuance of any building permit for said land. D. Any lot or lots shown on said plan, shall be released from the conditions noted ill B. preceding by a majority of: the said Planning Board, simultaneous with the issuance by said Highway Surveyor of the Certificate referred to in paragraph C. preceding. E. All engineering and construction costs related to said Road improvements shall be borne by the Applicants and/or Owners exclusively, and not by the Town of North Andover. F. Owners and/or Applicants agree to perform all construction and improvement work on Forest Street in accordance with said Exhibit A earlier referred to. Owners and/or Applicants further agree, in accordance with paragraph 7 of said Exhibit A. that Forest Street shall be exempt from all Town Services other than police, fire and school services. All upkeep, repair. , and maintenance costs oil the said Forest Street shall be borne exclusively by the Owners and/or Applicants and other persons legally entitled to the use thereof, and not by said Town of North Andover . This paragraph shall be binding upon all of the land shown on said plan in perpetuity and shall not be deemed released by the Certificates from the Highway Surveyor and/or Planning Board referred to in paragraph C. and D. preceding. This paragraph may only be released by said Highway Surveyor and/or Planning Board by specific reference to this paragraph and to paragraph 7 of Exhibit A. G. Owners and/or Applicants shall upon request of said Planning board and/or the highway Surveyor, secure to their reasonable satisfaction the construction and improvement of the said Forest Street. The covenants contained herein shall be executed by all parties prior to, or simultaneous with, the endorsement of "approval under the subdivision control law not required" by the Planning Board, and shall take effect immediately upon said endorsement. i Owners and/or Applicants agree to record this Covenant with the Essex North District Registry of Deeds simultaneously with the plan earlier referred to, and the deed of easement to the Town of North Andover as set forth on said Plan. Owners and Applicants further agree that the deed of Lots A and B as shown on said plan, shall recite specifically that said Lots are conveyed subject to the within covenants and said easement. The within covenants shall be binding upon the executors, administrators, devisees, heirs, successors and assigns of all of the undersigned, and shall constitute covenants running with the land included on said plan, and shall operate as restrictions upon said land. For owners title see deed from Elaine McNulty, Trustee under a Declaration of Trust dated November 12, 1975 and recorded with Essex North District Registry of Deeds, Book 1271, page 354, and with Essex South District Registry of Deeds, Book 6217 , page 371, recorded in Essex South District Registry of Deeds on April 15, 1985 as instrument number 110 and in Essex North District Registry of Deeds on April 12, 1985 as instrument number 7025. Town of North Andover Planning Board, by: ------------------------------- -------------------------------- ------------------------------- _-_-______-____...._r___-____--_-r ------------------------------- William E. Bingham, g , Cynthia-J. „Bingham, Owne r See Attached Sohn d. PBiggio, _Applicant____ ____------. _See Attached EileenM. Biggio, �Applicant�__ . rt COMMONWEALTH OF MASSACHUSETTS Essex, SS. Sept. 9 , 1985 Then personally appeared the. above--named, William E. Bingham and Cynthia J. Bingham and acknowledged the foregoing instrument to be their free act and deed, before me, Not � public My commission expires: so, COMMONWEALTH OF MASSACHUSETTS Essex, SS. Sept. , 1985 Then personally appeared the above--teamed, John J. Biggio and Eileen N. Biggio and acknowledged the Foregoing instrument to be their free act and deed, before me, ic-___a_____ ____-r�-_iq My commission expires: COMMONWEALTH OF MASSACHUSETTS Essex, SS. Sept. , 1985 Then personally appeared the above--named, ...................... ` - - W - ^ - being amajorityof the membersofthePlanning Boardof-the---- Town of North Andover, Massachusetts, and acknowledged the foregoing instrument to be their free act and deed, before me, Notary Publ ic____-__-_-_--_-_..e.._. My commission expires: OFFICE OF I ICHWAY SURVEYOR 384 OSGOOD STREET ° �', ,..•k" TOWN OF NORTH ANi OVER, MASSACffUSRJ'°I� 01 cNu 5 VILLIAN A.C YR #����y Surv®ywr ' F1LEPRONE 685.095€I August 5 , 1985 Planning Board Michael Roberts , Chairman 120 Main Street, North Andover. , Massachusetts Re : Stonecleave Road/Boxforc Dear Mike ;"' Street/forest Street I am making the following recommendations on the improvements to Forest Street in conjunction with the proposed development Of two house lots on a 5-acre parcel located on Forest Street. 1 . 14 " deep gravel. base, 2.5 ' wide . 2 . 22 wide paved surface , with a 2, " binder and 1! 11 topc9at . 3 . One 12 " drainage culvert at the termination of th@ existing cul-de-sac . 4 + . Relocation of the existing electricity transformer to a site to be mutually agreed upon . 5 . Gravel road shoulders to be 61 to a ' wide, with a relatively flat grade , ( actually 4,, per foot ) . 5 • A plan to be provided to indicate town boundries , projection of road from Stonecleave cul-de-sac , and relocation of electric transformer . Also, location 7 • of driveways , fifty- foot -right of way, etc . This proposal is baser on the fact that all the town services other than Police , Tire , and school would be exempt . This would be done as a legal covenant which would be a perpetual agreement within this proposal . r Very truly yours , t William A . Cyr highway Surveyor WAC/cc cc : Mr . John Diggio Ipswich Savings Bank j 1 DEED OF EASEMENT WE, WILLIAM E. BINGHAM AND CYNTHIA J. BINGHAM, of Ipswich, Essex County, Massachusetts, for consideration of less than $:100 paid grant to THE INHABITANTS OF NORTH ANDOVER with quitclaim covenants, the right to use the "easement for passage" for the purposes that public ways are customarily used in the Town of North Andover on the following described portion of the grantors ' land situated on Forest Street in said North Andover, Massachusetts, and as shown on " Plan of Land in North Andover. and Boxford, Massachusetts (Essex County) Surveyed for John J. and Eileen M. Biggi.o, dated September 6th, 1.985" , which plan is to be recorded herewith. Said easement is more particularly bounded and described as follows: SEE DESCRIPTION ATTACHED HERETO For our title see deed from Elaine McNulty, Trusted, under a Declaration of Trust dated November 12, 1_975 and recorded with Essex North District Registry of Deeds, Book 1271, page 354, and with Essex South District Registry of Deeds Book 6217, page 371, recorded in Essex South District Registry of Deeds on April 15, 1905 as instrument number 1.10 and in Essex. North District Registry of Deeds on April 17. , ].98 5 as instrument- number 7025. Witness our hands and seals, this day of «_K 1985. William E. Bingha Cynthia�J .�Bingham COMMONWEALTH OF MASSACHUSETTS Essex, SS. _ _ __` .w__r 1985 Then personally appeared the above named, William E. Bingham and Cynthia J. Bingham, and acknowledged the foregoing instrument to be their free act and deed, before me, NotaAublic - ------------ my commission expires: DESCRIPTION TO BE ATTACHED TO DEED OF BASEMENT Northwesterly by Lot B as shown on said plan, 70. 02 feet; Northwesterly again by Lot B on a curve having a radius of 288.32 feet, 135. 36 feet; Northwesterly again by Lot Be 80 .84 feet,- Northwesterly by Lot A as shown on said plan, 50. 00 feet; Easterly by the Town line separating North Andover, MA and Boxford, MA at the terminus of Stonecleave Road, 63,72 feet; Southeasterly by other land of the grantor, 91 .32 feet; Southeasterly again by land of said grantor on a curve having a radius of 238.32 feet, 111.. 88 feet; Southeasterly again by land of said grantor, 72. 00 feet; Southwesterly by Land of said grantor and by land now or formerly of Arthur R. Murphy, Jr . , 50. 05 feet. Containing .351 acres more or. less (15, 285 s. f. ) according to said plan. In the event of any discrepancies between the foregoing description and said plan, the plan shall control, for all purposes. 1 1 SUBORDINATION AGREEMENT I , Elaine McNulty, Trustee under a Declaration of Trust dated November 12, 1-975 and recorded with the Essex North District Registry of Deeds, Book 1271, page 354 and with Essex South District Registry of Deeds in Book 6217, page 371, holder of a mortgage from William E. Bingham and Cynthia J. Bingham, recorded in Essex North District Registry of Deeds on April 12th, 1985 as instrument number 7026 and in Essex South District Registry of Deeds as instrument number Ill on April 15th, 1985 in the original principal amount. of $75, 000, do hereby subordinate said mortgage and the note and claim secured thereby to a certain covenant running to the Town of North Andover, dated September 9th, 1985 by and between William F. Bingham and Cynthia J. Bingham, as Owners, and John J. Biggio and Eileen N. Biggio as Applicants, and the Town of North Andover, which covenants are recorded herewith. In all other respects said mortgage and the note and claim secured thereby remain in full force and effect. Elaine-McNulty__-__- v-_-_------ Trustee COMMONWEALTH OF MASSACHUSETTS Es sex, SS. Sept. , 1985 Then personally appeared the above-named, Elaine McNulty, Trustee aforesaid and acknowledged the foregoing instrument to be her free act and deed, before me, Notary I--Pub-ic-_____-___e----- -- My commission expires: i Test Data North Andover, Massachusetts 1 2 Parcels Forest St. Extension Owner: Webb Bingham 32 Mulholland Drive Ipswich, Mass 01938 Lot on Cul de sac Pere results Bate Test 1 15 minute saturation 12"_911 22 minutes 9'A" 33 minutes 3-18-85 11 minutes per inch Test 2 15 minutes saturation 12"--9" 28 minutes 91'-611 57 minutes 3-18-85 19 minutes per inch Deep Test results Test 1 32" Top & Subsoil glacial till & rock Q 71011 3-18-85 fine sand to 910'I water at 910" Test 2 30" Top & Soil sandy till to 81011 3 -18-85 water at !10fE Lot on pond side Perc results Test 2 15 minute saturation 12"-911 15 minutes 911-611 21 minutes 11-27--84 7 minutes per inch Test 3 15 minute saturation 1211-9" 19 minutes 911-6" 28 minutes 11-28-84 10 minutes per inch Deep test results 2611 Top & Subsoil sandy till & rocks 3--18-85 to 6 1611 V ledge at 61 6" no water at 616"\ j #2 28"1 Top & Subiloil sandy till to 716" ledge at 716" no water at 716" 3-18-85 #3 24" Top & Subsoil glacial till to 616" ledge at 6°6" 110 water at 616" 3-18-85 Thomas W. Morris R,so or MA a� THOM�,� MORRIS .� po No. 610 STV- . j 7}IOMA►S G � W N � ell) _ _..._M R.B IS ST w..-"�..�..�.�,.—..*,.......ed.--..— .�., +1eWrde' '+��+....m��.�.r•/" 1. .1 1 � • Ln I I l k U' I 4I �. cn ' 3 I f1 I I V a�: no water at 616" ................... .. .. • . _ �---_ �+C7 r7ns