HomeMy WebLinkAbout1987-10-22 Legal Documents Jared Place II DEF SUB I BK2787
Iill 20 GRANT OF EASEMENT
I'
Robert J. Janusz of 40 Sunset Rock Road, Andover, Essex
I County, Massachusetts, for consideration of less than One
Hundred ($100.00) Dollara, does hereby grant to the Inhabitants
of the Town of North Andover, County of Essex, Massachusetts,
t � the following easements:
Detention Pond Easements located as follows:
1. One Lots 16 and 17.
2. On Lots 23, 24, 25, 26, 34, 35, 36, 37, 38, 39
1
and 40. 1
Said easements being shown on a plan of land entitled,
"Definitive Subdivision Plan of Jerad Place II, Located
in North Andover, Massachusetts." Scale: As Noted,
Date: Nov. 19, 1986, Revised July 1, 1988, Prepared by
Thomas E. Neve Associates, Inc., said plan being
recorded with the Essex North Registry of Deeds as Plan
No. /(o2/1, Said easement shall be for all purposes
for which detention pond easements are commonly used in
the Town of North Andover, including but not limited to
to
the drainage and storage of run-off in the area;
construct and maintain drainage and storage facilities,
pipes, headwalls and other structures; to excavate and
II regard said areas; to serve as detention areas; and to
allow run-off to discharge. Reference is made to said
plan for a more detailed description.
For title reference see deed recorded at Book 1992, Page
239.
V�i 8th day of July, 1988.
WITNESS my hand and seal this
Robert anus
II
II
II COMMONWEALTH OF MASSACHUSETTS
II July 8, 1988 }
Essex, as. 1
Then personally appeared the above-named Robert J.
Janusz, and acknowledged the foregoing to be his free act and
deed, before me,
Reginald L. Mar den
Notary Public I
MY Comm. Expires: 6/16/89
Recorded Aug.15,1988 at 1:58PM #19474 i
q
e
EDS
GRANT OF EAS &'�"' OF T.
`` � pIccST.
Robert J . Janusz of 40 Sunset Rock SI�o ad, Andover, Essex
County, Massachusetts , for consid(E�tatttian_A.fA-�Iess..t.han One
Hundred ( $100 . 00 ) Dollars , does hereb'E� M��.o the Inhabitants
of the Town of North Andover, County of Essex, Massachusetts ,
the following easements :
An easement over the land in North Andover, Essex
r County, Massachusetts , known as Jerad Place Road,
Candlestick Road and Sugarcane Lane . Said ways are
shown on a plan of land entitled, "Definitive
Subdivision Plan of Jerad Place II , Located in North
Andover, Massachusetts . " Scale : As Noted, Date : Nov .
19 , 1986 , Revised July 1 , 1988 , Prepared by Thomas E .
Neve Associates, Inc . , said plan being recorded with the
Essex North Registry of Deeds as Plan No
Reference is made to said plan for a more particular
description .
Said easement is granted with the right to pass , repass
and otherwise use the streets and ways as shoran on said plan for
all the purposes for which said streets and ways are commonly
used in the Town of North Andover. However reserving unto the
Grantor the fee in said streets and ways .
For title reference see deed recorded at Book 1992 , Page
239 .
WITNESS my hand and seal this 8th day of July, 1988 .
Robert Janu
COMMONWEALTH OF MASSACHUSETTS
j Essex, ss . July 8 , 1988
�y
Then personally appeared the above-named Robert J.
Janusz , and acknowledged the foregoing to be his free act and
s deed, before me,
.:t
'a
,r
Reg ald L. Marden
Notary Public
My Comm. Expires : 6/16/89
L: jerad
'i
it
i
'i
't GRANT OF EASEMENT ESSEX REC. OF DEEDS
kt)f(TH DIU.
*1 Robert J . Janusz of 40 Sunset Rock R�0j 5 AnPcpy4,. , 1a$sex
`3 County, Massachusetts , for consideration of less than One
Hundred ( $100 . 00 ) Dollars , does hereby grant tb .. he-•-�+ ` a}��t-ants
of the Town of North Andover, County of Essex, M'4s'-s �u�setts ,
the following easement :
A temporary easement for all the purpose of a turn
around at the end of Sugarcane Lane . Said easement
being shown on a plan of land entitled, "Definitive
Subdivision Plan of Jerad Place II , Located in North
Andover, Massachusetts . " Scale : As Noted, Date : Nov.
19 , 1986 , revised July 1 , 1988 , Prepared by Thomas E .
Neve Associates , Inc . , said plan being recorded with the
Essex North Registry of Deeds as Plan No . �/z� 6 Said
easement affecting Lots 32 and 33 as show on said
made to said plan for a more
plan . Reference is
detailed description .
Said easement to terminate upon the approval and
construction of extension of Sugarcane Lane in to Seven Oaks
Subdivision, if approved.
For title reference see deed recorded at Book 1992 , Page
239 .
WITNESS my hand and seal this 8th day of July, 1988 .
41bert J. usz
y
COMMONWEALTH OF MASSACHUSETTS
Essex, ss . July 8 , 1988
Then personally appeared the above-named Robert J.
Janusz , and acknowledged the foregoing to be his free act and
deed, before me,
'Y
y Re Ina d L �Mlarden
Notary Public
My Comm. Expires : 6/16/89
L: jerad
I
GRANT OF EASEMENT
[[i.E'
Robert J . Janusz of 40 Sunset Rock��"R� �s1uLd�veE05 r, Essex
County, Massachusetts , for consideration of ess jan One
Hundred ( $100 . 00 ) Dollars, does hereby gr nt o In �} itants
of the Town of North Andover, County of EAA M ssaehusetts ,
Q the following easements : _.. ......
Detention Pond Easements located as follows :
,t 1 . One Lots 16 and 17 .
2 . On Lots 23 , 24 , 25 , 26 , 34 , 35 , 36 , 37 , 38 , 39
and 40 .
Said easements being shown on a plan of land entitled,
"Definitive Subdivision Plan of Jerad Place II , Located
in North Andover, Massachusetts . Scale: As Noted,
Date: Nov. 19 , 1986 , Revised July 1 , 1988 , Prepared by
Thomas E . Neve Associates , Inc . , said plan being
recorded with the Essex North Registry of Deeds as Plan
No . c; 1 6 Said easement shall be for all purposes
for which detention pond easements are commonly used in
the Town of North Andover, including but not limited to
the drainage and storage of run-off in the area; to
construct and maintain drainage and storage facilities ,
pipes , headwalls and other structures ; to excavate and
regard said areas ; to serve as detention areas ; and to
allow run-off to discharge . Reference is made to said
plan for a more detailed description .
For title reference see deed recorded at Book 1992 , Page
239 .
WITNESS my hand and seal this 8th day of July, 1988 .
+t
ell �
y 4
i �i
Robert anus
COMMONWEALTH OF MASSACHUSETTS
Essex, ss . July 8 , 1988
^1
Then personally appeared the above-named Robert J.
Y Janusz , and acknowledged the foregoing to be his free act and
deed, before me,
;-T
03.
Reginald L. Marden
Notary Public
My Comm. Expires : 6/16/89
k L: jerad
170 5 Mass.App. Ct. 167 5 Mass.App.Ct. 171
Lynch v.Lynch. Fairbairn v.Planning Board of Barnstable.
Mass. 28, 28 (1949); LaVallee v. LaVallee, 3 Mass. App. of this appeal are to be awarded to the wife or her counsel
Ct. 736 (1975). in the discretion of the Probate Court.General Laws c.208,
The principal issue before us is whether there was a §38.
legally sufficient justification for the judge's failure to So ordered.
make an award of alimony in the form of cash to the wife.'
The judge appears to have based his decision on the fact
that the wife had been seeing a psychiatrist, socially, usu-
ally several nights a week. Even if we were to assume that
there may have been fault on the part of the wife short of
that constituting grounds for granting a divorce to the RoBERT A. FAIRSAIRN&Others,trustees, us.PLANNING
husband, that fault should not have been decisive of the BOARD OF BARNSTABLE.
amount of alimony to be awarded. Topor v. Topor, 287
Mass. 473, 476 (1934). See Graves v. Graves, 108 Mass.
Barnstable. November 10, 1976.—March 4, 1977.
314, 317-318 (1871), and cases cited. See generally Inker, Present: HALE,C.J.,GRANT,&BROWN,JJ.
Walsh & Perrochi, Alimony and Assignment of Property:
The New Statutory Scheme in Massachusetts, 10 Suffolk Subdivision Control. Practice, Civil, Subdivision control appeal, Ex-
U.L. Rev. 1, 19-20, n.98 (1975). On the record before us, traordinary review. Health,Board of.
the wife is the party in whose favor the divorce decree was
entered and the husband is the party who breached the The disapproval of a definitive subdivision plan by a town's of board of
n.
health warranted the planning board's disapproval of the plan.
marriage obligation. Under these circumstances,given that [173-174]
the wife has a clear need and that the husband has the The determination of all health questions with respect to the disposal
i t s of sewage in a proposed subdivision which would not be connected
ability to pay, we conclude that there was no legally suffi- to a municipal sewer was vested exclusively in a town's board of
cient reason for the judge's failure to make a cash alimony health under G. L. c. 41, §81U, and so.much of a planning board's
regulations which purported to require the satisfaction of the plan
award to the wife. We do,however,find the support award
2 for the minor children t0 be entirel appropriate. nine board- as to sewage disposal facilities was invalid as in -
Ysistent with the subdivision control law" within the meaning g of
Accordingly, the case is remanded to the Probate Court c.41,§81Q. (176]
SO that the decree and judgmentA finding by a towns planni
ment may be modified to in-
verts, board that proposed storm drains,cuf-
f and related installations in a subdivision plan were not ade-
clude an additional cash award (beyond the$100 per week quate was not sufficient to warrant disapproval of the plan where
Y
support award) of alimony to the wife. Costs and expenses the board made no finding that the plan's design of storm drains
]^ and related installations did not meet the requirements of the town's
engineering department pursuant to the relevant regulation of the
board. [176-177]
2 The fact that the husband has gone beyond the terms of the decree Disapproval of a subdivision plan by a town's planning board was not
-� and has taken care of most of the needs of the wife and the children
justified by a finding that there was a danger of pollution of adja-
by allowing them to charge items on his credit cards, and by giving cent wetlands where there was no rule or regulation of the board
them money upon their request,does not alleviate the problem caused respecting such matter. [177]
R by the judge's failure to make a cash alimony award. As the wife A finding by a town's planning board that a subdivision plan"fail[ed]
testified, "It's degrading. Every time I need something—light bulbs to show the location of all existing natural features within or adja-
cent to and significantly affecting the layout of the area proposed
affairs the way I want to, and have some privacy" (emphasis sup- to be subdivided, specifically bodies of water, streams, swamps and
I d marshes," as required by a planning board regulation, was suffi-
plie �' ciently specific to comply with the provisions of G. L.c. 41, 1 81U.
3 See n.2,supra. [177-1781
r>
1?
(
172 5 Mass.App.Ct. 171 5 Mass.App.Ct.171 173
Fairbairn v.Planning Board of Barnstable. Fairbairn v.Planning Board of Barnstable.
Disapproval of a subdivision plan by a town's planning board was not its letter of August 14 to the town clerk, the planning
justified by a finding that the developer failed to demonstrate that board stated that it had "adopt[ed.] the report of the
an adequate supply of water for fighting fires would be available
to the subdivision where there was no rule or regulation of the Hoard of [h]ealth as a part of its reasons for voting dis-
board respecting such matter. [178] approval" and listed five additional reasons for its disap-
Disapproval of a subdivision plan by a town's planning board was not proval. The plaintiffs duly appealed to the Superior Court
justified by a finding that a proposed entrance to a public way con-
stituted a dangerous intersection where there was no rule or regu- from the decision of the planning board.G.L.c.41, § 81BB.
lation of the board respecting such matter. [179] A judge of that court entertained oral and documentary
The validity of a disapproval of a subdivision plan by a town's board
of health which was adopted by the planning board as a reason for evidence, filed findings of fact and conclusions of law, and
disapproving the plan was not placed in litigation by the developer's ordered the entry of a judgment sustaining the decision
appeal from the decision of the planning board under the provisions of the planning board. The plaintiffs have appealed from
of G.L.c.41, $81BB. [180-181]
Discussion of the procedural due process which a town's board of the ensuing judgment. The evidence is reported. We affirm
health is required to afford a developer of a subdivision prior to the judgment.
formulating an adverse recommendation to a planning board pur- 1. The course followed by the judge in hearing and de-
suant to G.L.c.41,$81U. [181-183]
ciding the plaintiffs' appeal was procedurally correct. It is
Bi LL ix EQurry filed in the Superior Court on August 24, well settled that the duties of the Superior Court in hear-
1973. ing and deciding appeals under § 81BB are to conduct a
The suit was heard by Nelson,J. hearing de novo, find the relevant facts, and, confining its
James J. Marcellino (Brian A. O'Connell with him) for review to the reasons stated by the planning board for its
the plaintiffs. disapproval of the subdivision plan (Canter v. Planning
Henry L. Murphy, Jr., Town Counsel (John Murphy Bd. of Westborough, 4 Mass. App. Ct. 306, 307 [1976]),
with him) for the defendant. determine the validity of the board's decision. Rettig v.
Planning Bd. of Rowley, 332 Mass. 476, 478-489 (1955).
GRANT, J. This case arises out of the plaintiffs' efforts Kuklinska v. Planning Bd. of Wakefield, 357 Mass. 123,
to obtain the necessary approvals under the Subdivision 130 (1970). Mac-Rich Realty Constr. Inc. v. Planning
Control Law (G. L. c. 41, §§ 81K-81GG) of a plan by Bd. of Southborough, 4 Mass. App. Ct. 79, 81 (1976).
which the plaintiffs propose to subdivide into 169 residen- See also Strand v. Planning Bd. of Sudbury, ante, 18,
tial house lots the major portion of a tract of some 230 21-24 (1977). It is also settled that the developer has
acres of land owned by the plaintiffs and lying in the the burden of proving that the planning board has ex-
westerly part of the town of Barnstable.The plaintiffs filed ceeded its authority in disapproving the plan. Mac-Rich
a definitive subdivision plan with the planning board on Realty Constr. Inc. v. Planning Bd. of Southborough,
June 18, 1973. As required by G. L. c. 41, § 81U, a copy 4 Mass.App.Ct.at 83.
of that plan was duly filed with the town's board of health. 2. Basically,the first reason given by the planning board
The planning board conducted a public hearing on the for disapproving the plaintiffs' plan was that the plan had
plan (G. L. c. 41, §81T) on July 23, 1973. By its letter already been disapproved by the board of health for rea-
to the planning board of August 13, 1973, the board of sons stated by the latter board in its letter of August 13,
health indicated its disapproval of the plaintiffs' plan for 1973. The planning board's action in this respect was cor-
reasons which we shall consider in part at a later point rect. A planning board may not approve a subdivision plan
in this opinion. On the same day the members of the plan- which does not comply with the recommendation of the
ning board voted unanimously to disapprove the plan. By board of health; the planning board's options in such a
App.174 5 Mass.A . Ct. 171 5 Mass.App. Ct.171 175
Fairbairn v.Planning Board of Barnstable. Fairbairn v.Planning Board of Barnstable.
case are limited to those of disapproving the plan or modi- The first sentence of G. L. c. 41, § 81M, recites that
fling it in such fashion as to bring it into conformity with "[t]he subdivision control law has been enacted for the
the recommendation of the board of health.' G. L. c. 41, purpose of protecting the safety, convenience and welfare
§§ 81M and 81U. See United Reis Homes,Inc.v. Planning of the inhabitants of the cities and towns...by regulating
Bd. of Natick, 359 Mass. 621, 622-623 (1971). Compare the laying out and construction of ways in subdivisions...
Rounds v. Water & Sewer Commrs. of Wilmington, 347 and ensuring sanitary conditions in subdivisions...."That
Mass. 40,43 (1964); Garabedian v. Water&Sewerage Bd. sentence, standing by itself, contains no allocation of du-
of Medfield, 359 Mass. 404, 406 (1971). ties and functions as between a planning board and a
3. The planning board's second reason for disapproving board of health in "ensuring sanitary conditions in sub-
the plaintiffs' plan was that the "[b]oard finds that based divisions." The second sentence of § 81M speaks of a plan-
on the evidence presented at the public hearing regarding ning board's exercising its powers under the Subdivision
soil structure, on-site examination by [b]oard [m]embers, Control Law "with due regard...for securing adequate
and the lack of adequate proof offered by the developer, provision for...sewerage," but only in the context of such
warrants the finding that the proposed on-site sewage a board's other duties and functions with respect to the
disposal facilities are not satisfactory pursuant to Section ways in a subdivision. The first sentence of G. L. c. 41,
III, Paragraph 4, Subparagraph (C) 3 of the Subdivision §81U (as most recently amended by St. 1972, c. 749, § 1),
Rules and Regulations." That section reads: "Any lot so requires a developer to submit a copy of his definitive sub-
located that it cannot be served by a connection to a mu- division plan to the board of health when he submits the
nicipal sewer system shall be provided with on-site sewer- original of the plan to the planning board. The second
age disposal facilities satisfactory to the Board of Health sentence of that section contemplates that the board of
and the Planning Board" (emphasis supplied). We need health "shall report to the planning board in writing ap-
not decide whether so much of this rule or regulation as proval or disapproval of said plan, and in the event of dis-
purports to require the satisfaction of the planning board approval shall make specific findings as to which, if any,
is sufficiently definite to apprise developers "in advance of the lots shown on such plan cannot be used for building
what is or may be required of them and what standards sites without injury to the public health, and include such
and procedures will be applied to them" (see Castle Es- specific findings and the reasons therefor in such report,
tates, Inc. v. Park & Planning Bd. of Medfield, 344 Mass. and, where possible, shall make recommendations for the
329, 331-334 [19621; Chira V. Planning Bd. of Tisbury, 3 adjustment thereof...." That same sentence concludes
Mass. App. Ct. 433, 438-439 [1975]), because we are of with a proviso to the effect that a planning board may
opinion that the planning board has misconceived its du- proceed to act on a subdivision plan without receiving any
ties and functions in a case such as the present,where the report from the board of health "if a municipal sewerage
proposed development lies entirely within an area which system will service the proposed subdivision." The fourth
is not served by municipally owned sewers and in which an sentence of § 81U is to the same general effect as the pro-
individual sewage disposal system will have to be con- viso of the second sentence; it contemplates the possibility
structed on each house lot. that a planning board may not have the board of health's
report in hand by the time of the public hearing required
by §81T. The fourth sentence of §81U also contains the
1 The second option would not have been feasible in the circum- prohibition of a planning board's overriding the recommen-
stances of this case.
i
s
176 5 Mass.App. Ct. 171 5 Mass.App. Ct.171 177
Fairbairn v.Planning Board of Barnstable. Fairbairn a.Planning Board of Barnstabl,
dation of a board of health which has already been dis- did not meet the requirements of the town's engineering
cussed in part 2 of this opinion. That prohibition is under- department 2
scored by the third paragraph of §81U, which provides The planning board's third statement of reasons also
that "[i]f the report of the board of health...shall so re- includes the following: "The [b]oard specifically finds that
quire, the approval by the planning board shall be on con- there is a real danger of pollution of these adjacent wet-
dition that no building or structure shall be built or placed lands from surface water run-off which would be substan-
upon the areas designated without consent by such board tially altered from the natural run-off now existing and by
of health...." the seepage of sewage through the soil structure, and the
Reading the foregoing provisions together and in har- threat to the Great Marsh and Barnstable Harbor would
mony with each other,we conclude that the determination substantially harm the safety, convenience and welfare of
of all health questions with respect to the disposal of the inhabitants of Barnstable and would create a menace
sewage in a subdivision which will not be connected to a to marine and vegetable life of all forms in the Great
municipal sewer is vested exclusively in the board of health Marsh thereby severely damaging a major asset owned by
and that so much of the planning board's rule or regula- the [t]own of Barnstable,enjoyed and used by inhabitants
of the t own for recreation, fishing, boating, shell fishing,
tion III, (4), (C), 3, as looks to the contrary is�invalid [ ]
as "inconsistent with the subdivision control law within swimming and conservation. Prescinding again from any
the meaning of G.L. c.41, § 81Q. It follows that the second question of sewage, and recognizing that the board's fears
reason given by the planning board for its disapproval of were directed to matters of legitimate public concern, we
the plaintiffs' plan cannot stand. have been unable to find any rule or regulation of the
4. The critical portion of the third reason given by the board which justified its refusal to approve the plan on
pproval of the plan was that any ground such as that just stated. See Pieper v. Plan-
planning board for its disa
the proposed storm drains, culverts and related installa- ning Bd. of Southborough, 340 Mass. 157, 162-164 (1959);
tions and the proposed sewage disposal systems "are not Castle Estates, Inc. v. Park & Planning Bd. of Medfield,
adequate to dispose of surface water and sewage in such 344 Mass. at 332-333; Canter v. Planning Bd. of West-
a way as [not to] affect adjacent lands and lands in the borough, 4 Mass. App. Ct. at 308. Contrast Hamilton v.
subdivision which are wetlands and are subject to the Planning Bd. of Lexington, 4 Mass. App. Ct. 802, 803
Wetlands Protection Act." To the extent that this finding (1976).
The fourth reason given by the planning board for
or reason is concerned with the proper disposal of sewage, 5.disapproving the laintiffs' plan was that it "fails to show
it is legally irrelevant for the reasons already discussed in P P
part 3 of this opinion. The only rule or regulation of the the location of all existing natural features within or adja-
planning board which appears to have any relevance to the cent to and significantly affecting the layout of the area
situation is § V, (10), (A), which provides as follows: proposed to be subdivided, specifically bodies of water,
"Storm drains, culverts, ditches, and related installations, streams, swamps and marshes, as required by Section IV,
including catch basins, gutters and manholes shall be in- Para 1, Subpar. (g)" and by § IV, (3), of the board's
stalled as necessary to provide adequate disposal of sur- rules and regulations (emphasis supplied). The cited pro-
face water, from or in the subdivision and adjacent land;
as per the Town Engineering Department's requirements" 2 To the contrary, there was evidence at trial from which the judge
(emphasis supplied). The board made no finding that the could have found that the plaintiffs' design did meet the requirements
plaintiffs' design of storm drains and related installations
of the town's engineering department.
178 5 Mass.App.Ct.171 5 Mass.App. Ct. 171 179
Fairbairn v.Planning Board of Barnstable. Fairbairn v.Planning Board of Barnstable.
visions require that a definitive subdivision plan show the 7. The planning board's sixth reason for disapproval
location of a number of features, including bodies of was that it found that the proposed entrance onto Route
water, streams, swamps, [and] marshes, as well as such 6A constitutes a dangerous and hazardous intersection
features as "wooded areas, railroads, major highways, which would present a danger to life and limb in the
[and] airports." There was evidence at the trial in the operation of motor vehicles." The plaintiffs' attack on this
Superior Court (introduced through a conservation officer reason is that it is not grounded on any provision of the
and unchallenged by the plaintiffs) that the plan in ques- planning board's rules and regulations. We have studied
tion failed to reflect the existence of three streams, one of with some care the portions of the rules and regulations
them approximately a third of a mile long, and a swamp which might be thought to have some bearing on the
approximately 125 feet long and fifty feet wide. problem of traffic safety at the intersection of a public way
The plaintiffs argue that the board should have specified with anyof the ways to be laid out in a proposed subdivi-
exactly what additional bodies of water should have been sion. Although those rules and regulations are obviously
disclosed on the face of the plan. We think that the board, directed to "reducing danger to life and limb in the opera-
by citing the relevant sections of its rules and regulations tion of motor vehicles" (G. L. c. 41, § 81M), we find no
" to "streams" and "swamps," statement or evidence of a "reasonably definite" Castle
and referring "specifically Y
[i]n the Estates, Inc, v. Park & Planning Bd. o f Medfield, 344
complied with the requirement of § 81U that
event of disapproval, the planning board shall state in Mass. at 334) intention on the part of the planning board
detail wherein the plan does not conform to the rules and [lessen] congestion...in the adjacent public ways" or
regulations of the planning board. [coordinate] the ways in a subdivision.. .with the
6. The fifth reason for disapproval was stated as fol- public ways in the...town"within the meaning of § 81M.
lows: "The [p]
Tanning [b]oard further specifically finds, Accordingly, we conclude that this aspect of the case also
based on testimony furnished by the [c]hief of the West falls within the Canter case, 4 Mass. App. Ct. at 309-310,
Barnstable Fire District, that the proposed subdivision and that the sixth reason advanced by the board in sup-
constitutes a danger to the safety and welfare of the
- port of its decision is invalid.
habitants of the [t]own by proposing to add well over one 8. The judgment of the Superior Court will have to be
hundred dwelling units to an area not serviced by Mown affirmed (with one slight modification) because, as we
water and with no adequate means available to reduce have held, two of the reasons given by the planning board
danger and secure safety in the case of fire or other dis- in support of its disapproval of the plaintiffs' definitive
aster within the subdivision." This reason for disapproval subdivision plan are valid. One of those reasons (the
is also invalid; no rule or regulation of the planning board fourth) can be overcome by relatively simple physical
purports to require a developer to demonstrate that an amendments of the plan. The other reason (the first)
fires will be available was the adverse recommendation of the board of health,
adequate supply of water for fighting
in or to a subdivision which will not be served by town the validity of which has yet to be explored. The parties
water. See Canter v. Planning Bd. of Westborough, 4 have briefed and argued a number of questions concerning
and the cases there collected. the validity of that recommendation and the processes by
Mass. App. Ct. at 308-309,
3 We are not to be understood as expressing any opinion on the
question whether G. L. c. 41, 0 81M and 81Q, could be construed to 4 Section V (2) ("STREET DESIGN STANDARDS"), (3)
authorize a rule or regulation designed to accomplish the result desired (("STREET ALIGNMENT""RIGHT OF WAY H. Street right of way widths"), and (4)
by the planning board in this case.
180 5 Mass.App.Ct. 171 5 Mass.App. Ct.171 181
Fairbairn v.Planning Board of Barnstable. Fairbairn v.Planning Board of Barnstable.
i
which it was formulated. It is obvious that the plaintiffs afforded under §81BB (see part 1 of this opinion), but
intend to continue pressing for some form of subdivision, the developer will be permitted to test the sufficiency of the
and in the circumstances we think we should express our evidence adduced before the board of health to warrant
views on the problems which seem likely to arise in the the "specific findings" which that board is required to
future. Harvard v. Maxant, 360 Mass. 432, 437 (1971). include in its report to the planning board under G. L.
(a) We say first that we do not think that the validity c.41, §81U, as well as the legal sufficiency of the"reasons"
of the board of health's recommendation was placed in liti- required to be stated in that report." A corollary of this is
gation by the appeal taken by the plaintiffs under the that a board of health runs a serious risk of having its
provisions of G. L. c. 41, § 8113B. That section allows an recommendation annulled by a court if the board fails
appeal to the Superior Court by any person "aggrieved.. . to maintain a complete "record of the proceedings com-
by any decision of a planning board concerning a plan of plained of" (G. L. c. 249, § 4), including a record of the
a subdivision" (emphasis supplied)- Although the plan- evidence adduced before the board.'
ning board was required to and did give the adverse recom- (b) We have already seen that an adverse recommen-
mendation of the board of health as a reason for disap- dation by a board of health can be just as devastating to
proving the plaintiffs' plan, we have already seen that the a developer as the adverse decision of a planning board
planning board was powerless to decide, or review the acting within its jurisdiction. The formulation by a board
decision of the board of health on, the sewage disposal of health of the recommendation and report required by
problems which were within the exclusive cognizance of G. L. c. 41, § 81U, involves a process which is adjudicatory
the latter board. We do not think the recommendation rather than legislative or political. See Milligan v. Board
of the board of health is comprehended within or forms a of Registration in Pharmacy, 348 Mass. 491, 499-500
part of the "decision" of a planning board within the (1965); Davis, Administrative Law Treatise, §§ 7.02, 7.03,
meaning of § 81BB. Compare Rounds v. Water & Sewer 7.06(1958).Contrast Hayeck v.Metropolitan Dist.Commn.
Commrs. of Wilmington, 347 Mass. at 45. 335 Mass. 372, 374-375 (1957); Natick Trust Co. v. Board
This is not to say that a developer who claims to be of Bank Incorporation, 337 Mass. 615, 617 (1958); First
aggrieved by an adverse recommendation of a board of Church of Christ, Scientist v. Alcoholic Beverages Control
health made under G. L. c. 41, §81U, is powerless to seek Commn. 349 Mass. 273, 274-275 (1965); Reid v. Acting
any form of judicial review of that recommendation. We Commr. of the Dept. of Community Affairs,362 Mass. 136,
think the developer may, in conjunction with an appeal 140, 142-143 (1972); Cambridge Elec.Light Co.v.Depart-
from the decision of the planning board under G. L. c. 41,
81BB, maintain an action in the nature of certiorari "We see nothing in the amendment of G. L. c. 249, 4, which was
§ effected by St. 1973, c. 1114, §289, that was intended to destroy the
against the board of health under G. L. c. 249, §4 (as right confirmed by St. 1943, c. 374, J 1, to "contend...that the evi-
denceor the basis
appearing in St. 1973, c. 1114, § 289). See and compare of any specified finding the basis
aconclus cof the nclusion as matter ction of law insufficient
Boston Edison CO. v. Selectmen Of Concord, 355 Mass. to warrant such action, finding or conclusion." Any other reading of
the present 14 would present serious problems.See Southwick Birds&
79, 8M7 (1968); Reading v. Attorney Gen. Sot Mass.2 Animals,Inc.v. County Commrs. of Worcester,360 Mass. 133, 134,n.1
269-270 (1972); Hershkoff v. Registrars of Voters of Wor- (1971).
cester, 366 Mass. 570, 574 (1974); Stetson v. Selectmen of s We express no opinion on the question whether a developer could
Carlisle, 369 Mass. 755, 757, 758 (1976); Assessors of Sau- also challenge the board of health's recommendation in proceedings
gus v. Baumann, 370 Mass. 36, 37 (1976). The scope of brought under G. L. c. 231A. See Reading v.Attorney Gen. 362 Mass.
review by the Superior Court will not be the same as that
at 271; Stetson v. Selectmen of Carlisle, 369 Mass. at 758.
182
5 Mass.App.Ct.171 5 Mass.App.Ct. 171 183
Fairbairn v.Planning Board of Barnstable. Fairbairn v.Planning Board of Barnstable.
}; DuBois that found in 81U namely, whether "the lots shown on
ment of Pub. Util. 363 Mass. 474, 486 Ct9767)4, 675-678 such plan [can] be used for building sites without injury
v. Selectmen of Dartmouth, 2 Mass. pp
(1974). Without deciding whether one's right to develop to the public health." We have already discussed the rec-
ords which the board must kee
his property under the Subdivision Control Law should be P of its proceedings. See
characterized as a property right or as a right to engage also G. L. c. 39, §§ 23A-23C, as appearing in St. 1975,
in a lawful occupation (see Regents of State Colleges v. c. 303, §3.
569-572 [1972]; Goss v. Lopez, 419 (c) One of the reasons given by the board of health for
Roth, S. 564, its adverse recommendation with respect to the entire plan
U. S. 565, 574 [1975]), we are of opinion that a board of health is constitutionally required to afford a developer was that the plaintiffs had failed to prove to the board's
satisfaction that certain of the lots shown on the plan
a measure of procedural due process prior to formulating would meet one or more of the re uirements of art. XI of
an adverse recommendation to a planning board. See Mil- q
348 Mass. at the State Sanitary Code ("Minimum Requirements for
ligan v. Board of Registration in Pharmacy, the Disposalof SanitarySewage in Unsewered Areas"
495, 499-500; Boston Gas Co. v. Department of Pub. Utils. promulgated under G. L. c. 111, § 127A.7 Section 127A
368 Mass. 51, 54-55 (1975). �» requires each local board of health to enforce the rovi-
In answer to the question [W]hat process is due. P
(Lotto v. Commonwealth, 369 Mass. 775, 779-780 [1976]), sions of the code (Van Scoyoc v. Board of Health of
we think that upon the filing with the board of health of Sherborn, 4 Mass. App. Ct. 97, 101 [1976]), the primary
a copy of his definitive subdivision plan pursuant to G. L. Purpose of which "is to prevent violations rather than to
c. 41, § 81U, a developer who desires a hearing before that punish past violations as criminal offences." Common-
board may also file a request therefor in writing. Compare board of health is also required to act in a reasonable man-
Marmer v. Board of Registration_ of Chiropractors, 358 ner in formulatin its recommendation and report under
Mass. 13, 17 (1970). If, after studying the plan, the board G.L. c.41, § 81U. United Reis Homes,Inc.v. Planning Bd.
is disposed to disapprove the plan or to approve it subject
to conditions which have not been agreed to by the devel- of Natick,359 Mass. at 623.
oper, the board must honor the developer's request for a A review of the provisions of the code,, discloses that in
hearing and give him reasonable notice of the time and an unsewered residential development of the type contem-
must be advised of all the plated in the present case the minimum required size and
place thereof. The developer
facts and other material in the possession of the board on 7 Section IV, (4), (C), of the rules and regulations of the planning
which it intends to rely, and he must be given the OppOr- board purports to require that a definitive subdivision plan be accom-
panied by a certificate of "approval by the [b]oard of [h]eatth of the
tunny to produce all relevant evidence, to cross examine pose
l dis osag a proposed, and approval witnesses, and to present argument.Rathkopf,Zoning and means of sews p p of the soil structure
in the disposal locus" "[i]f [d]istrict sewerage is not proposed." In
Planning, c. 43, § 3 (3d ed. 1972). Davis, Administrative view of what has already been said in part 3 of this opinion, we would
Law Treatise, § 7.05 (1958). Wadell v. Board of Zoning find it difficult to conclude that a planning board has the power to
Appeals, 136 Conn. 1, 8-10 (1949). Hyson v. Montgomery
require a board of health to consider any particular health factor in
formulating its recommendation and report under G. L. c. 41, §81U.
County, 242 Md. 55, 67 (1966). 8 The version of the code which was introduced in evidence in the
The standard to be applied by the board of health in Superior Court and which is before us embodies all amendments
deciding whether to approve or disapprove a plan in whole adopted through April 12, 1966. We have not been advised of any pos-
or in part (or to require the imposition of conditions) is sible subsequent amendments.
184 5 Mass.App.Ct. 171 5 Mass.App. Ct.185 185
Fairbairn v.Planning Board of Barnstable. Commonwealth v.Gauthier.
capacity of the septic tank and leaching field of each in- sued a certificate to the effect that the requirements of the
dividual sewage disposal unit will depend, in part at least, code have been met (§ 2.6) 9
on the number of bedrooms in each particular dwelling We think that at the §81U stage of a case like the
(§§ 2.11,5.1,7.1). Where the septic tank and leaching field present the board of health would be acting prematurely
may be located will depend in large measure on certain (compare MacGibbon v. Board of Appeals of Duxbury,
minimum required distances which must be maintained 369 Mass. 512, 516 [1976]) and unreasonably if it were
from the dwelling, the lot lines, water supply lines, wells to take any action with respect to art.XI of the code other
and water courses (§ 3.2). The required determination of than requiring the planning board to endorse a condition
the maximum ground water elevation (§§ 7.2, 14.3) and on the definitive plan to the effect that no dwelling shall
the required percolation test (§ 14.1) cannot be made be built on any lot without first securing from the board
until the location of the proposed leaching area is deter- of health the disposal works construction permit required
mined. In short, there is no way of telling whether any by the code. Compare Castle Estates, Inc. v. Park &Plan-
given lot will meet the requirements of the code until it is ning Bd.of Medfield,344 Mass.at 330,331.
known where the owner of the lot proposes to locate his The judgment is to be modified by striking out the sec-
dwelling and how many bedrooms he proposes to have. and paragraph thereof and, as so modified, is affirmed,
No provision of the Subdivision Control Law requires without costs.
the subdivider to construct any dwelling in any part of the
subdivision,and it is common knowledge that lots are often So ordered.
sold out of subdivisions to individual buyers who wish to
construct homes which will suit their particular architec-
tural tastes and family needs. When a subdivider sub-
mits a definitive subdivision plan to a planning board and
a board of health he will seldom be in a position to prove COMMONWEALTH VS. ARTHUR GAUTHIER.
that the requirements of the code will be met with respect
to what may ultimately be constructed on each individual Essex. December 16, 1976.—March 9, 1977.
lot in his subdivision, even if he expects to do all the con-
struction. But that fact does not leave the public or any Present: xEvrrr�,GRANT,&AxMsxxONG,JJ.
individual purchaser of a lot at the mercy of the sub-
divider. The code is explicit on the points (1) that no Identification. Practice, Criminal,Voir dire.
building or plumbing permit may be issued for any dwell-
iri on an lot until a pen-nit has been obtained from the At a criminal trial the judge did not abuse his discretion in deciding
g y p not to conduct a voir dire on the admissibility of certain identifica-
board of health for the location and construction of an lion evidence where the defendant was aware of the evidence prior
individual sewage disposal unit (§§ 2.1, 2.2, 2.5), (2) that to trial. [187-1881
the board of health may not issue any such permit until it
has been supplied with all the information necessary to 9 Section 20.1 of art. XI provides in part: "The board of health may
nary the application of any provision of this article with respect to any
determine whether all the relevant requirements of the
particular case when, in its opinion, the enforcement thereof would
code will be met (§2.3), and (3) that no new dwelling do manifest injustice;provided,that the decision of the board of health
may be sold or occupied until the board of health has is- shall not conflict with the spirit of these minimum standards."
4 . � ��
FORM I
COVENANT IS E X • OF 1)uos
AUG 7
19
N o ft h'-,;-A Massachusc
L L)
KNOW ALL MEN by these presents that the undersigned has submitted at
application dated 11 /19/86 to the North Andover Planning
i on
oTfand entit 'l
i v i s
Board for approval of a Definitive Plan of a d
Jerad Place II ) plan by : Thomas E. Neve
Associates , Inc . , d a t e d :11/19/86* 7/1/88 , a n
) address :40 Slinset gn-ck
ow n e Y Robert J . Janusz
t s 01 10 land located : off�no aver ,�r , I�as s a Tcu s�et 0 and showing 30 propo'
apd caj3dipstick Road
the Planning Board to approve sucl
-�o t�s �The undersigned has requested
-i i thout requiring a performance bond .
plan
North Andover
l
IN CONSIDERATIO11 of said Planning Board of IN
in the county of Essex approving said plan wit out requiring
performance bond , the undersigned hereby covenants and agrees i th the
-
inhabitants of t h e totin as follows :
1 . That the undersigned is the owner* in fee simple absolute of all t
ages o
land included in the subdivision and that there are no mortgages
record or otherwise on any of the land , except for those described
below , and that the present holders of said mortgages have assente
to this contract prior to its execution by the undersigned .
If there is more than one owner , all must sign . "Applicant " ma.
be an owner or his agent or representative , or his assigns , but
the owner of record must sign the covenant .
2 . That the undersigned wi I I not sell or convey any lot in the subdi -
vision or erect or place any permanent building on any lot until
the construction of ways and installation of municipal services
necessary to ,adequately serve such lot has been completed in accor
ti dance with the covenants , conditions , agreements , terms and provis
-
as specified in the follo%ii n g
a The Application for Approroval of Definitive Plan ( Form C
b . The Subdivision Control Law and the Planning Board ' s Rules and
Regulations governing this subdivision .
S P e
the conditions of approval The Certificate of Approval and
c
cified therein , issued by the Planning Board , dated 6/17/88
d . The Definitive Plan as approved and as qualified by the Certi
ficate of Approval .
.0�
e . Other document ( s ) specifying construction to be completed ,
namely ,
Page 1 of 3)
David E. Janusz, Amy Janusz, Robert
r see deed from Janusz '
For •ti tl e to the property ,
=a t
dated 6/4/85 recorded in Essex Norh District Registry of
Deeds ,
Book 1992 Page 239 x �
,ND '
The present holder of a mortgage upon the property is none
of
and recorded in
The mortgage � s dated gook Page or register
Regi s try of Deeds ,
Land Registry as Docume
in in
No . ,
nd
a note on certificate of tit e No .
in Registration Book
Pa e The mortgagee aqrees to hold the mortgages subject Loth_
g11 covenants
t forth above and agrees that the covenants
same status , force and ha
effect as thouqh executed and recorded before
the taking of the mortgage and further agrees that the mortgage shall
be subordinate to the above covenant .
•'�.-; spouse of the undersigned applicant
Clare A. Janusz p
ere y-agrees t at suc interest as I , ire may have in the premises shal
be subject to the provisions or this covenant and insofar as is necess -
ar releases all rights of tenancy by the do��er or homestead and oti�er
Y
interests therein .
LESS '.dHE!'.EOF tine have hereunto set our hands and seals this 7th
Ifl WITS 19 88
o f July ,
,.4...'' l%CIS--_`..' t
'i Robert J.
Clare A. J z
:4
Acceptance by a Majori ty
-
_ti �:_{ the Planning Board of
COMMONWEALTH OF MASSACHUSETTS
Essex ss August 10, 1988
The foregoing instrument was acknowledgeArbefore me this 1 t
Robert J . Janusz .
day of August ,vv-
1988, by
o r y
ic
= Y -r My commission expires :
t F O R I4 J
RELEASE FORMS
The undersigned, being a majority of the Planning Board of the Town of
North Andover, Massachusetts, hereby certify that:
a. the requirements for the construction of ways and municipal
services called for the Performance Bond or Surety and dated
r-
19 and/or by the Covenant dated
Juty 7 19 88 and recorded in District Deeds ,
Book 2787 Page 1 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
if JERAD PLACE-11 Section( s ) , Sheets >>
Plan dated 11/19/86 REV to 711188 19 recorded by the _E.6.6ex _
Noxth 1"tki.ct Registry of Deeds , Plan KWft 11216 , Page
or registered in said Land Registry District, Plan Book
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 ) )
Lot'ls #15, 1 G, 17 9 44 Jenad Ptaee Road, and
Lot',5 #18, 19, 20, 21, 22, 23, 24, 25, 2G, 27, 38, 39,40,41,42 8 43 on Candtutick Road
b . ( To be attested to by a Registered Land Surveyor )
I hereby certify that lot number ( s ) 15 thtcough 27 and 38 through 44
on Jenad Ptace Road and Candtat i ck Road Street ( s )
do conform to- layout as shown on Definitive Plan entitled
It JhRAD PLACE 11 Section Sheet ( s ) _1-11
egistered Land Surveyor
Page 1 of 2
The Town of N _ ch Andover, a municipal cc: Doration 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 Covenant
dated Juty 7 19 88 from Robert J. Januzz _
of the City/Town of Andover
E,mex , County, Massachusetts recorded with the
E.6.6ex No.,tth District Deeds, Book 2787
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 :
Low #15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 2G, 27, 38, 39,40,41,42,43,44
EXECUTED as a sealed instrument this 8th day of June 19 89
Majority of the i�iff
VI
Planning Board
e4l;—
of the Town of sa�)
North Andover
COMMONWEALTH OF MASSACHUSETTS
s s . June 8 19 89
� SSE"k
Then personally appeared P,41)-4 lMbsTed 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 .
Notary Public
My Commission Expires :
Page 2 of 2
FORM J
RELEASE FORM
The undersigned, being a majority of the Planning Board of the Town of
North Andover, Massachusetts, hereby certify that:
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
July 7 19 88 and recorded in District Deeds ,
Book 2787 Page i 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
, Jerad Place - II
Section( s ) Sheets ll ,
Plan dated 11/19/86 Rev to 7/1/88 recorded by the Essex
No.
North Distric
�egistry of Deeds, Plan abbk 11216 , Page
or registered in said Land Registry District, Plan Book ,
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 ) )
Lots 28 , 29, 30 , 31, 32 , 33, 34 , 35, 36 , 37 , Sugarcane Lane
b . ( To be attested to by a Registered Land Surveyor)
I hereby certify that lot number( s ) 28 through 37 inclusive
on Sugarcane Lane SAXXXA:�<M
do conform to layout as shown on Definitive Plan entitled
Jerad Plance - II Section et( s ) 1-11
Regi ecku d veyor
ME
No.31724
Page 1 of 2
c . The Town of Nor- Andover, a municipal corr ration situated in
the County of E—ex, Commonwealth of Massak. zsetts, acting by
its duly organized Planning Board, holder of a Performance Bond
or Surety dated 19 , and/or Covenant
dated ,7u7y 7 , , 198E - from J^hr�rf T Tantr� �
of the City/Town of An(Inupr
FcGax , County, Massachusetts recorded with the
Essex Nnrth _ District Deeds , Book 2787
Page I_, 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 :
Lots 28 , 29 , 30, 31, 32 , 33 , 34 , 35 , 36, 37 Sugarcane Lane
EXECUTED as a sealed instrument this 4th day of August ig92
Majority of the
Planning Board {�
of the Town of
North Andover _
COMMONWEALTH OF MASSACHUSETTS
ss . 19 �z
r
Then personally appeared one of the above
Aoard&dP-
members o� the Planningthe Town of North Andover ,
Massachusetts and acknowledged the foregoing instrument to be the free
act and deed of said Planning Beard, before me .
Notary Public
My Commission Expires :
Page_ 2 of 2
FORM M
CONVEYANCE OF EASEMENTS �d�E,XjJTNI `t�ES
�Ub
r� 58
Robert J. Janusz of 40 Su !?'�J�0c -Road
Andover Essex Go4rBt',OgVC� isac usetts ; for the
consideration of less than $100.00 he' r'Ay grants , transfers and
del i vers unto the town of North Andover a
muni cipal corporation in Essex County , the
following :
A. The perpetual rights and easements to construct , inspect , repair ,
remove , replace , operate and forever maintain ( 1 ) a sanitary sewer
or sewers with any manholes , pipes , conduits and other appurtenan -
ces , ( 2 ) pipes , conduits and their appurtenances for the conveyance
of water , and ( 3) a covered surface and ground water drain or drain
with any manholes , pipes , conduits and their appurtenances , and to
do all other acts incidental to the foregoing , including the right
to pass alona and over the land for the aforesaid purposes , in ,
through , and under the whole of Jerad Place II
datedll/19/86 revised 8/21/87 said plan is made and said p an is
incorporate erein for a comp ete and detailed description of said
roads .
B . The perpetual rights and easement to use for access to
the fol 1 owing parcel of 1 and si tuated on_,:�.Place Rd Cardlesti azarcan
Street in said town of North Andover LIEU I
and bounded and described as fol lows : Being the streets and ways, Jerad
Place Rd, Candlestick Rd, - and Sugarcane. Ln. located in North Andover, Essex Count
.Massachusetts,. as shown on a plan of land entitles, Definitive Sueclivision
Plan of Jerad Place II Located in North Andover, Massachusetts." Prepared by
Thomas E. Neve Associates, Inc. dated November 19, 1986 and revised August 21, 198.
The grantor warrants that the aforesaid easements are free and clea
of all liens or encumbrances , that he ( it ) has qood ti.tle to trans -
fer the same , and that he will defend the ,same against claims of al
persons .
F o r grantor ' s t i t l e s e e d e e d f r o m David E. Janusz, "Janusz, & Robot J. Janusz
dated June 4, 19 85 and recorded in
Essex North Di stri ct Regi stry '°of Deeds , Book
1992 Page 239 ,
To be completed if a mortgage exists :
And The First National Bank of Boston of Boston Massachusetts
the present ho Ider of a
mortgage on t e a ove dtscri bed ] an which mortgage is dated
Mgrch 2525 19 86 and recorded in said Deeds , Book
2153 Page 330 for consideration paid , hereby releases
unto town forever from the operation of said mortgage , the rigf
and easements hereinabove granted and assents thereto .
( D 1 --r � 1
Authorized signature of Mortgagee Owner Rober J anusz
IN WI�TNESS 'THEREOF we have hereunto set our hands and seals this
�7 day of February 1988
COMMONWEALTH OF MASSACHUSETTS
Essex, , ss Februarys 19 f
Then personally appeared the above named Robert J. Janusz
and acknowledoed the foreaoino to be his free
act and deed , before me . —
Notary P u bj,�,c
Hy o mis_sion Expires
NOTE : This conveyance is not effective until accepted by Town Meeting
or the Board of Selectmen .
ti
w
Y f
a
3
:1
( Page 2 of 2 )
RECEI`lE0
'• /` R1tit FORt1FS DAIIIEr,LORK
SEX i�Ft,. OF DUDS RIVI .
NO AhDOYER
PLANNING BOA'f2bi 1 D15T
'' O 45
TOWN OF North Andover
QUG 15 ���s' fsE��
fsti(i' PA E
CERTIFICATE OF AMENDMENT , MODIFI�C�{Y: �1��SCISSION OF
APPROVAL OF DEFINITIVE SUBDIVISION PLAN
June 17 , 19 88
TOWN CLERK
TOWN OF North Andover Massachusetts
On the motion/petition of Robert J . Janusz dated April 19 ,
1988 and in accordance with Massachusetts General Laws ,
chapter 41 , Section 81-14 , it is hereby certified by the Planning Board
of the town of North Andover Massachusetts , that at
a duly called and properly posted meeting of said Planning Board , held
on June 16 , 1988 it was voted to xmxdVmodify K
the approva of t e definitive subdivision plan of land entitled :
Jerad Place II owned by : Robert
of : plan s dated :
November 19 1986 and revise : Au ust 21
omas E . Neve and recorded at t e :
yNort ern Essex Count Registry of Deeds , Plan Book 1992
Page 239 , per ormance guarantee being
and recor ed Book Page an located
and showing 27
propose ots , y ma ing the fo owing3y&K&jitTjXWmodification s
by xW�ng� the approval for the followinq reasons :
Redesigned of the Candlestick Road right-of-way rrnss_i �rPttancl
See attached decision which amends the decision issued bj the
Planning Board on October 26 , 1987 .by adding_ a Condition 420
All prior conditions of approval shall remain in full force and effect -
1 until such time as they are met ; pursuant to Massachusetts General Laws
Chapter 41 , Secti on 814 , this Axecxcta(KvR/14odi fi cati on/RxXx shall
.;' take effect when duly recorded by the Planning Board at the North
Essex Registry of Deeds the plan or originally approved ,
or a copy t ereof , a certified copy of this vote making such Amendment/
_ Modification or Rescission , and any plan or other document referred to
in this vote . Said' recording to be at the expense of the applicant
'�'% in the case of Amendment or Modification .
The Amendment/Modification/ Rescission of the approval ofbthissoldnor
shall not affect the lots in the subdivision which v
mortgaged in good faith and for a valuable consideration or any
rights appurtenant
thereto ,
tsuch
wiut the �n mortgagesheifwany ,othereon
lots , and of the holder of the mortgage o .
_
j Written consent from said owners and mortgages , if any , is attached
,l
hereto .
NOTE TO CLERK : The Planning Board should be notified immediately of
any appeal to the Superior Court on this subdivision
Amendment/14odification/ Rescission o"f the approval
made within the statutory 20 -day appeal period .
If no appeal is filed with your office , the Planning
Board should be notified at the end of the 20-day
appeal period in order that the originally approved
plan may receive an appropriate endorsement and be
recorded along a registered istered copy of the certi -
g fied vote Amending/Modifyinc/Rescinding the approval .
A True Copy , attest :
Clerk G
P d ���_-------
Duplicate copy sent to appl cant :
Planning Board
J
..a
0=
c� .a i h'13 is to cei liy tnai twenty (20)days
`=o ua hZaa elapsed from date of decision filed
'm+ LLI without filing of an appeal.
o:::D
Date Ctir c.c n� /O
t� Daniel t_o r V
o c; Town Clo k 0YC:)
ATTEST:
- A True Copy
Town CleA
1- RECEI'1L0 .
FORM OANIEL LOMG
�� 7010 CLERK
NOR," ,'{hDOYER
PLANNING BOARD
TOWN OF North Andover MASSACHUSE� ', 45
CERTIFICATE OF AMENDMENT , MODIFICATION OR RESCISSION OF
APPROVAL OF DEFINITIVE SUBDIVISION PLAN
June 17 , 19 88
TOWN CLERK
TOWN OF North Andover Massachusetts
On the motion/petition of Robert J. Janusz dated April 19 ,
1988 and in accordance with Massachusetts General Laws ,
Chapter 41 , Section 81-W , it is hereby certified by the Planning Board
of the town of North Andover , Massachusetts , that at
a duly called and properly posted meeting of said Planning Board , held
on June 16 , 1988 , it was voted to XIWM /modi fy/ imX7,kiX�
the approval of the definitive subdivision plan of land entitled :
Jerad Place II owned by : Robert
of : plan s dated :
November 19 1986 and revised : August 21 , 1987
y : Thomas E. Neve , and recorded at the :
Nort ern Essex Count Registry of Deeds , Plan Book 1992
Page —2 , per ormance guarantee being
and recorded Book Page , land located
, and showing 27
proposed lots , by making the following awooY&&&A1Wmodiftcat1on s :
by YcXxxx►xDWxDqc the approval for the fol l owing reasons :
N
Redesigned of the Candlestick Road right-of-wav rrnssina a wetland
See attached decision which amends the decision issued by the
Planning Board on October 26 , 1987 by adding a Condition 420 .
All prior conditions of approval shall remain in full force and effect
until such time as they are met ; pursuant to Massachusetts General Laws ,
Chapter 41 , Section 81-14 , this &x ► cbx(Knk/Modi fi cati on/RxxyjXX*RR shall
take effect when duly recorded by the Planning Board at the Northern
Essex Cou4ty Registry of Deeds the plan or originally approved ,
or a copy thereof , a certified copy of this vote making such Amendment/
Modification or Rescission , and any plan or other document referred to
in this vote . Said' recording to be at the expense of the applicant
in the case of Amendment or Modification .
The Amendment/Modification/Rescission of the approval of this plan
shall not affect the lots in the subdivision which have been- sold or
mortgaged in good faith and for a valuable consideration or any
rights appurtenant thereto , without the consent of the owner of such
lots , and of the holder of the mortqage or mortgages , if any , thereon .
( Page 1 of 2 )
P
Written consent from said owners and mortgages , if any , is attached
hereto .
NOTE TO CLERK : The Planning Board should be notified immediately of
any appeal to the Superior Court on this subdivision
Amendment/Modification/Rescission o"f the approval
made within the statutory 20-day appeal period .
If no appeal is filed with your office , the Planning
Board should be notified at the end of the 20-day
appeal period in order that the originally approved
plan may receive an appropriate endorsement and be
recorded along with a registered copy of the certi -
fied vote Amending/Modifying/Rescinding the approval .
A True Copy , attest :
_ J
Clerk G
Duplicate copy sent to appl cant :
Planning Board
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( Page 2 of 2 )
°Terad Place l [
Definitive Modi[ icatioo
Condition #20
The Board grar-Its thp app | icant a waiver f,o(Ti the | ovns !7u s a/'d
Regulations standards rega`ding the Candlestick Road righL-o [
pertains to crnssing a .wet1*nd area lncated betvlc?en station
station 17+00, more or less . The Bnar(1 shall allow 9 riqht-of
-w�v 3 ! '
wide which contajns a 2 9 ' L-)ide pavement sertjnn centered in th�
right-of-way . T|`e elevatiov of the., headeall shm/\d be
the finishpd gr+de at the edge of' p�vpment . A guard rail shoi \ b�
installed on the h���eall . |he don fnr the goard r a il all !.)=
approved by t1-1 e D. P .U . pr o endn ement '
The roadway shall have a p cd r�--nierline and travel lane wo nqs
with posted signs which sta ''Na,row dway" nn both ap|`rna�hes '
This condition and woiver vias dnne in nrdvpr to allow the rnad,av |n
crnss the wet \ and to this !ocation in accordancs �ith an Ord^'r
Co rid itinns \ ss'/pd b� W'c NACC ,
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