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HomeMy WebLinkAbout1990-11-21 Correspondence - 1990 DEF SUB l j i August 17, 1990 Atty. Joel B. Bard Kopelman and Paige, P.C. 101 Arch Street Boston, Massachusetts 02110-1112 Re: Whippoorwill Park, Preliminary Subdivision Application Dear Mr. Bard: At a regularly scheduled meeting of the Planning Board, held on August 7, 1990, the board asked that staff contact legal counsel with regard to the above referenced Preliminary Subdivision application. I have enclosed the original file and a letter from Mr. Reginald L. Marden, to the Planning Board, dated 7/26/90 which gives the history involved with this site. The Planning Board has two direct questions which they would like you to address. 1. Does the applicants construction of one single family home on one lot with the originally approved subdivision mean that the subdivision was acted upon. If this subdivision approval was indeed acted upon, does then the town have the right to enforce the original agreement that two lots shall remain under a conservation restriction. 2 . What rights, if any, does the Town wave if the Planning Board grants a rescission to the original subdivision approval as recommended in Mr. Marden' s letter of 7/26/90. The applicant has granted the Planning Board an extension to August 31, 1990. The Board will be meeting on August 28, please respond in a timely manner as the Board would like to act upon this application at that meeting. Please contact my office with any questions or concerns. Sincerely, Christian C. Huntress Town Planner cc: Planning Board Karen H. P. Nelson, Director DPCD. .1 f I LEONARD KOPELMAN KO P E L.,M A N A N O PA I G E, P,C. DONALD G.PA3GE ATTORNEYS AT LAW ELIZABETH A.LANE JOYCE FRANK IOI ARCH STREET JOHN W.GIORGIO BARBARA J.SAINT ANDRE BOSTON, MASSACHUSETTS 02HOA112 3 JOEL B.BARD RICHARD J,FALLON (617) 951.0007 GEORGE M.MATTHEWs FAx(617) 951•2735 JAMES A.OYREK WILLIAM H£WIG III EVERETT J.MARD£R JANE M,O'MALLEY PATRICK J,COSTELLO KAREN V.KELLY COLLEEN B,WALKER SONDRA M.KORMAN ANNE•MARIE M.HYLAND RICHARD BOWEN September 12 1990 CHERYL.ANN BANKS JOANNE BUTTERALL BRIAN W. RILEY Planning Board North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: Whippoorwill. Park Subdivision Dear Members of the Planning Board: You have requested an opinion relative to the status of the 1978 Whippoorwill. Park Definitive Subdivision Plan Approval in relation to a proposed new preliminary plan for the site, The Board has raised two questions: first, whether the Town has a right to enforce the condition of subdivision approval that two lots remain under a conservation easement; and second, whether the Board waives any rights the Town may have under the subdivision approval by rescinding the plan. It is my opinion that the conditions of the 1978 Whippoorwill Park Subdivision Plan remain in effect and may be enforced by the Town. It is my further opinion that a rescission of the original plan approval in favor of a revised plan would not necessarily waive any rights the Town currently holds with respect to the original plan. This would be best accomplished by treating the current application as an amendment to the original plan. The plans and documents you have provided to me evidence the Board' s conditional approval of the Whippoorwill Park Subdivision in 1978 . The Certificate of Approval lists seven conditions, some of which were inscribed on the endorsed plan and incorporated into a Restrictive Covenant. The condition most relevant to the Board ' s first question is "that a conservative easement will be placed on two of the lots; this easement shall run with the land. " The plan, which notes the conservation easement condition, was recorded. Also, in a separate "NOTE" on the recorded plan, are the following statements: r j KOPELMAN AND PAIGE, P. C. Planning Board Page Two September 12 , 1990 "Entire site is zoned R2 : Residence District" "Lots No. 2 and 3 Reserved for Open Spaces and to be Restricted By A Conservation Easement" "Proposed Driveway to be 20 ' wide min. with 12" Gravel Base" The approval also contains a condition that the roadway be built to Town standards if it is to serve more than one residence. While this raises some question as to the Planning Board' s intent with respect to the requirement that lots 2 and 3 remain as open space, T am assuming that the open space requirement was intended to be permanent. This assumption is supported by the developer' s notation on the plan to this effect. While the plan was recorded, the Restrictive Covenant was not. Neither was the Planning Board' s 1978 Release of the first two covenant restrictions. Since 1978 , a single-family house has been constructed on one lot. There has never been a conservation easement recorded with respect to the remaining two lots. The vacant land has been acquired by another developer, who now seeks approval of a five lot subdivision of the Whippoorwill Park tract. The Planning Board' s first question is whether the construction of a dwelling on one lot means that the subdivision approval has been acted upon, thus obligating the developer to comply with the conditions of subdivision approval and allowing the Town to enforce the condition that lots 2 and 3 are to be placed under a conservation restriction. The new developer's attorney, Mr. Marden, has suggested to the Board that his client is not bound by the conditions of the Whippoorwill Park Covenant because these documents were never recorded. He cites Patel v. Planning Board of North Andover, 27 Mass. App. Ct. 477 (1989) in support of this claim. in Patel, the court found that the approval and recording of a plan showing a "proposed" roadway easement was, by itself, insufficient to create the easement for purposes of binding a subsequent purchaser of a lot to the "proposed" restriction. In my opinion, Patel is applicable to the Whippoorwill Park situation only to the extent that the notes and conditions on the plan do not establish a formal conservation restriction on lots 2 and 3 . However, it is my opinion that the developer' s agreement to restrict the lots and the conditions of subdivision approval inscribed on the recorded plan are nonetheless binding on subsequent purchasers. See, Green v. Board of Appeals of Norwood, KOPELMAN AND PAIGE, P. C. Planning Board Page Three September 12 , 1990 358 Mass. 253 (1970) . The failure of the developer to record the covenant has no effect on these obligations in my opinion. Furthermore, it is my opinion that the construction of a dwelling on one of the lots is evidence of the developer' s intention to proceed with the subdivision as approved, thereby obligating him to comply with the conditions of approval. However, since the Board has already released the lots from the Restrictive Convenant and a building has been constructed on lot 1, the ability of the Board to force compliance with the subdivision conditions, including the conservation easement requirement, may be limited. Nonetheless, it is my opinion that lots 2 and 3 must remain in open space per the developer ' s notation on the plan and that the Planning Board may advise the Building Inspector that construction on the two lots would violate the terms of subdivision approval. The Planning Board' s second question relates to the effect of approving a revised plan for the Whippoorwill Park tract. While the applicant is presenting the 5-lot Scott Circle plan as a "new" plan, it is my opinion that it should be treated as a modification of the 1978 plan under G.L. c. 41, §81W. Furthermore, in my opinion, recording of a §81W modification automatically supercedes the original plan, making a formal rescission of the original plan unnecessary. It is my further opinion that the Board may retain, amend, or eliminate any of the previous conditions of approval, as well as add new conditions when modifying the original plan. Therefore, should the Board decide to approve the proposed modification, I recommend that the Board consider requiring any documents pertaining to land restrictions within the subdivision to be referenced on, and recorded with, the plan. If I may be of any further assistance in this matter, please do not hesitate to contact me. Very truly yours, r Joel B. Bard JBB/JCC/va cc: Board of Selectmen Of KiWEN H.P. NELSON �? N "rN�p°r � Town of � 120 Main Street, 018,15 Director NORTH ANDOVER (508) 682 G983 BUILDING ti,�g•::;s <� CONSERVATION +cr uo DIVISION OF PLANNING PLANNING & COMMUNITY DEVELOPMENT November 30, 1990 Mr. Thomas E. Neve Thomas E. Neve Assoc. , Inc. 447 Old Boston Road U.S . Route One Topsfield, MA 01983 Re. Whippoorwill. Definitive Subdivision Application. Dear Mr. Neve, I am in receipt of the Definitive Subdivision application for Whippoorwill Park. When the Preliminary Subdivision was approved a few of the conditions stipulated additional requirements to be met at the time of the Definitive application. These requirements are as follows. 5 . Areas to be used for stump burial shall be clearly delineated on the definitive plans and approved by the Planning Board. 20 . Upon submission of a definitive application to the Planning Board the applicant shall also submit a request for rescission of the original Definitive Subdivision application as approved in 1978, entitled "Scott Circle" . (M.G.L. Chapter 41, Section 81W) 21. The applicant will be required to set aside certain land as "Open Space Conservation Land" . This land shall not be built upon except as allowed by the Planning Board at the time of the Definitive Subdivision Application. The exact amount of the conservation land being 3 . 37 acres and located as shown on the Preliminary Subdivision Plan entitled "Whippoorwill Park" Dated Oct. 3 , 1990, drawn by Thomas Neve, Registered Professional Engineer. All documentation of said "Open Space Conservation Land" shall be as approved by the Planning Board, at the time of the Definitive Subdivision application, and shall be incorporated into the deed for each lot so affected. The Public Hearing for this application has been set for December 13 , 1990. Please submit all of the above referenced information prior to that date. i { ` f 1f Z can be of an assistance lease feel free to contact Y P my of Tice. Sincerely► Christian C. Huntress Town Planner. cc: Karen H.P. Nelson, Director DPCD. Planning Board 4Z& 0-4 . 4 KAREN H.P.NELSON Town of 120 Main Street, 01845 '. Director NORTH ANDOVER (508) 682 6483 BUILDING CONSERVATION DIVISION OF PLANNING PLANNING & COMMUNITY DEVELOPMENT December 26, 1990 Mr. Thomas Neve 447 Old Boston Road Topsfield, MA 01983 Re: Whippoorwill Definitive Subdivision Dear Mr. Neve, I would first lake to thank you for appearing before the Planning Board at their December 13 , 1990 Meeting. At that time the public hearing for the above referenced Definitive Subdivision was opened. Also under consideration during this public hearing process is the recision of the original Subdivision Approval by the North Andover Planning Board entitled "Scott Circle" , Dated March 31, 1978 . At the December 13th meeting the Board had concerns with regard to the granting of the conservation land/open space as conditioned in the Preliminary approval . Please prepare a draft restriction and review it with me prior to the next public hearing scheduled for January 10, 1991. In addition to the conservation restriction the board is concerned with the access to lots 2 & 3 . The use of a common drive will better serve the intent and integrity of the open space. Please be prepared to address this point at the continued public hearing. I am in the process of drafting conditions which I will present to the Board at the next public hearing scheduled for January 10, 1990. Please contact my office so we may discuss this project prior to that date. Sincer ly G. Christian C. Huntress Town Planner cc: Karen H. P. Nelson, Director DPCD. Planning Board. JAN 24 '91 10:25 NEVE RSS0(--``TES / ;, ���� P. 1 r f THOMAS E. NEVE A"- OCIATES, INC. rENGINFPRS+LAND SURVEYOFIS•LAND WE PLA MPM 447 B=QN ST, -RUV fF I TOPSFIELD.MIA 0190 TO 0ATE-._.. — eOY Awfj)... iLm// tfEMeI/L94lT7ACNwnp wi{,fF;�l,s•Ta%:f.Y 151EbU9k5 ftlaN��l7a�ittx:v;r�su,wAFrno4apoaE'.VbDVr k)wr tw O•vur.