HomeMy WebLinkAboutNotice of Appeal of Enforcement Order 4.3.20 SMOL.-AK & i( AUI~jHAN Stcl panic A. Kiefer, Esq.
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Via Electronic Mail MAY 8 2OZO
Apri 13, 2020 Zoning,goatd otgppeals
Trudy Reid, Town Clerk
Town of North Andover
120 Main Street
North Andover, MA 01845
Re: Property at 1470 Forest Street Ext.
Owners: Philip and Mary Picariello
NOTICE QF APPEAL Oil+'ENFORCEMENT ORDER
Dear Ms. Reid:
This firm represents Philip and Mary Picariello, owners of the property at 1470
Forest Street Extension. On behalf of any client, we timely submit this Notice of Appeal
in accordance with Section 195-10.8 of the North Andover Zoning Bylaw and M.G.L.
c.40A, §15, appealing from the cease and desist enforcement order issued to the
Picariellos by the Zoning Enforcement Officer, Paul Hutchings, dated March 4, 2020 (the
"Violation Notice"). A copy of the Violation Notice is attached hereto at Tab 1. Please
note that Violation Notice was not received by the Picariellos until on or after March 16,
2020 as the mailing address used by Mr. Hutchins was incorrect'.
Background
The Picariellos have owned the 8.6 +/- acre property at located at 1470 Forest
Street Extension (the "Property") since acquiring the same in 1976. Mr. and Mrs.
Picariello are now in their 70s, having resided at the Property for nearly the past forty
years. A copy of their deed is attached at Tab 22.
The Property is located off Stonceleave Road, and can only be accessed by
vehicle via roadways within the Town of Boxford. At the time of the Picariellos'
purchase, the Property was undeveloped land. As shown on the 1972 Zoning Map, it does
I The Violation Notice was addressed to 1470 Forest Street Ext., North Andover, MA. However, the
correct mailing address is actually 1470 Forest Street Ext., Boxford, MA, as there is no recognized mailing
address of 1475 Forest Street Extension in North Andover. Per Section 195-10.1 of the Zoning Bylaw,
written notice of a violation is to be given by mail addressed to the owner at the address appearing on the
most recent real estate tax records. The Town's Assessor's office has the correct mailing address (1470
Forest Street Ext., Boxford) on file, however, the Violation Notice mistakenly was addressed to North
Andover, not Boxford. As a result, the Picariellos only received the Violation Notice within the past
couple of weeks.
(0015-Itau;v11East Mill, 21 High Strect,Suite 301, North Andover, MA 01845
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SMO3LAK & VAUGHAN LLP
not appear that the area of the Property was designated within a zoning district, although
the land areas adjacent to the westerly, easterly and southerly of the Property were
designated to be within the R2 zoning district, as then in effect.3
On or about the early 1980s, the Picariellos constructed their dwelling on the
Property and have resided on the Property since that time. Copies of the permit
applications and building permit are unavailable as the online North Andover Building
Department records do not contain any of the historic building permit records.
Since the late `70s/early `80s, in addition to residing at the Property, the
Picariellos have also utilized portions of the 8.6-acre parcel to park vehicles and limited
equipment associated with Mr. Picariello's construction business. The Picaricllos have
maintained the registration of these vehicles with the Town, and there has not been an
effort to conceal or conduct any illicit activity. Further, the parking of the vehicles and
any equipment are maintained so as not to impair any views from the road. The intensity
of such use of the land has not substantively altered or otherwise increased over the past
forty years; if anything, the parking of vehicles/equipment has decreased in the past
years.
As reported by my clients, in the early-raid 1980s, the Town had previously
reached out to the Picariellos regarding the use of their Property. At that time, the
Picariellos retained an attorney with Goodwin, Proctor & Hoar to represent them to work
through the matter with the Town 4. The matter was resolved between the Picariellos and
the Town, as recalled by the Picariellos, and it was understood that any storage of
vehicles or equipment should remain sufficiently away from the road so as not to be
visible from the way. Since that time, the Picariellos have abided by those terms.
Recent Enforcement Action Against the Property and Appeal of Action
By notices dated March 4, 2020, but not received by the Picariellos until on or
after March 16, 2020, the Zoning Enforcement Officer and the Conservation Commission
Administrator issued separate violation notices to our client. While this Notice of Appeal
pertains only to the Violation Notice issued by Mr. Hutchins, we wish to also inform the
Board that the Picariellos promptly retained a wetlands professional to review their
property and the matters outlined in the separate Commission's enforcement order.
Similarly, efforts have already been made to reach out from their wetlands professional to
Ms. Maxner to discuss those matters within that separate enforcement order. In light of
Covid 19 disruptions, the Conservation Commission has rescheduled a hearing on the
matter for July 2020.
With respect to the Violation Notice issued by Mr. Hutchins, the notice states that
the Zoning Enforcement Officer has determined that the Property is used as a contractor's
3 See Tab 3 for a copy of the 1972 North Andover Zoning Map.
'To date,(lie Picariellos have been unable to presently find the paperwork from this time period,and their
counsel has since passed away. As they continue to review their personal files,we will share such
information as may be discovered
f 00154450;v1)2
SIVIOLAK & VAUGHAN LLP
yard and that the same is not allowed under- the Property's current zoning R-1 zoning
designation. The property owners appeal from this Violation Notice for the following
reasons:
First, the Property has been used consistently for roughly the past forty years; the
Picariellos reside at the Property and also use portions of the 8.6 acre site to store limited
vehicle or equipment associated with Mr. Picariello's business. As depicted on the 1972
Zoning Map, it does not appear that the Property had any zoning designation. While the
Property was later zoned as an R2 district and currently, as an R1 district, the use of the
Property appears to predate the current, more restrictive (RI) zoning designation and is a
preexisting, nonconforming use.
Second, as stated above, the Picariellos had previously resolved the use of their
Property with the Town in the early 1980s. To the extent that the current Zoning
Enforcement Officer now seeks to commence enforcement on matters that appear to have
been previously addressed (and resolved) by the Town, these efforts may be unavailing
under M.G.L. c.40A, §7, which provides in relevant part:
If real property has been improved and used in accordance with the terms of the
original building permit, no criminal or civil action intended to compel the
abandonment, Iimitation or modification of the use allowed by the permit ......by
reason of an alleged violation of this chapter or of an ordinance or by-law
adopted under this chapter shall be maintained unless the action, suit or
proceeding is commenced and notice of the action, suit or proceeding is recorded
... within 6 years of the cornmencernent of the alleged violation. No criminal or
civil action intended to compel the removal, alteration, or relocation of a
structure by reason of an alleged violation of this chapter or of an ordinance or
by-law adopted under this chapter ... shall be maintained unless the action, suit
or proceeding is commenced and notice of the action, suit or proceeding is
recorded in the registry of deeds ...within 10 years of the commencement of the
alleged violation
If real property has been improved ... and the structures or alterations have been
in existence for a period of at least I0 years and no notice of an action, suit or
proceeding as to an alleged violation of this chapter or of an ordinance or by-law
adopted under this chapter has been recorded in the registry of deeds for the
county or district in which the real estate is located ... within a period of 10 years
from the date the structures were erected, then the structures shall be deemed, for
zoning purposes, to be legally non-conforming structures subject to section 6 and
any local ordinance or by-law relating to iron-conforming structures.
Here, the Picariellos' improvements upon and use of their- Property has existed
since approximately the early 1980s5. The use of the Property and its improvements have
been known by the Town, albeit not necessarily the current Zoning Enforcement Officer,
s It is noted that this past winter, the Picariellos permitted a landscaper to store limited landscaping
equiprnent or supplies at the Property over the winter months. Immediately upon receipt of the
Enforcement Order, the Picariellos requested the landscaper to remove all such materials from the Property.
As of March 23 or 24`r',such landscaping materials have been removed from the Property
t00154450,vl 13
SIVIOLAI{ & VAUGHAN LLP
for nearly forty years. The Picariellos had previously addressed the allowable uses, and
considerations of such uses to not be visible from the road, many years ago. They
likewise have not sought to hide or conceal the fact that they have commercial vehicles
and have the same registered to the Property address.
Finally, the Picariellos have and continue to seek to be good neighbors to the
surrounding properties. Should there be a specific concern as to the timing of a truck's
departure frorn the Property, for instance no departures before 7:00 a.rn., the Picariellos
are amenable to discussing with the Board such a reasonable request and restriction.
In closing, we respectfully request that upon consideration, the Board grant the
Picariellos' appeal and overturn the Violation Notice issued to them by the Zoning
Enforcement Officer.
Very truly yours,
Stephanie A. Kiefer
cc: D. Paul Koch, Jr., Chairman, Zoning Board of Appeals
Paul Hutchins, Building Commissioner
Encl.
(0015 aaso;vj)4
TAB 1
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Paul Hutchins Town of North Andover Tel: 978-688-9545
Inspector ofBundings Building Deparfinent Fax: 978-988-9542
a/4/2020
Dear Mr.Picariello of 1470 Forest Street Ext.North Andover ma 01845
it has come to my attention thatyau are running a contractors yard in a Residential x zone. t have visited the site and
determined the illegal activity.
This is a not an allowed activity In the RI Zoning district according to Town of North Andover Bylaws and this practice
must cease and desist immediately.
If this activity continues you will be fined 300.00 dollars per dayand every day is a occurrence.
If you have any questions on this matteryou may call me_
Regards, aul Hutchins/zoning enforcement officer
§ 195-11DAViolations and penalties.
I
Whoever continues to violate the provisions of this bylaw after written notice from the
Building Inspector demanding an abatement of a zoning violation within a reasonable time
shall be subject to a fine of$300. Each day that such violation continues shall be considered
a separate offense.
1211 Main Street-north Andover,MA 01845 ( phUtchins@northancloverma.gov www.northandoyerma.goy
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42 We, Charlotte P. Rea, of North Andover, Evoex County, Massachusetts, T, Albert
Perky, of Georgetown in said County,of Essex, lienry D. rerley, of Aoxford,
in said County of Eaaex, end Eleanor P, Metcalf
of Watertown, Middlesex County, ]ltosanchuselts,
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r 1�xhk�e7u4sesFsle`cfnrconeidrrs�ioepsiJ,sndin(ullconsidcs��ionol $3200.00
gTt1 to Philip A, Picarfello and hoary A, Picarfello, husband and write, • j
tenants by tho entirety
Of Alain Street, Boxford, EBEICx County,Massachuectts, with qutitlaitnroursants i
xb=lartix A certain parcel of land situated in North Andover, Essex County, Mama- '
`t`134� chusetts, being the "Elliot Lot" bounded and described as follows;
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NORTHrRLY by land of Raymond PerIey; ;
EASTERLY by land of Raymond Perky, and Towns road; t
SOUT IERLY by land of State of Massachusetts;
I WESTERLY by land of State of Massachusetts and Charles 11, Chnplirt.
j Cont*1ng eight(8}acres, Moro or lose, t
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jFor our flits sec Estate of Raymond Perley, Essex County Probato Docket '
I No, 318051, Iatdcrkx
l30YY23E8lc See deed I.
liaymond l+crley fram Mary L. Aver111 Paul roaorded wlth North
Essex Regis(ry of Deeds, Book 585, Page 92.
Said premises are conveyed aubjcct to easements, restrictions and
encumbrances of record, if any, as they may affect lice within granted premises,
The premises are shown as parcel containing 8,8331 acres, more or less, on
plan of land entitled; "Plan of Land In North Andover, Prepared for Philip Pfeariollo
March 19, 1978, Essex Survey Service, Inc,"recorded herewith.
Said premises are conveyed aubjcct to the laxes for the current municipal
fiscal year which the granieen herein nasume and agree to pay.
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Eva". &K March. 31, 1976
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