HomeMy WebLinkAboutTown of North Andover Mail - Fwd: North Andover/East Mill 40B - Correspondence - 0 Prescott Street 5/28/2026 5/28/26, 11:22 AM Town of North Andover Mail-Fwd: North Andover/East Mill 4013: Please Direct Correspondence to the ZBA Chair
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Terri MacNeil<tmacneil@northandoverma.gov>
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Fwd: North Andover/East Mill 4013: Please Direct Correspondence to the ZBA Chair
1 message
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Michael Lis <mlis@northandoverma.gov> Thu, May 28, 2026 at 10:50 AM
To:Terri MacNeil <tmacneil@northandoverma.gov>
Correspondence from Carolyn Murray in advance of the next meeting, regarding Avalon.
--Mike
---------- Forwarded message---------
From: Carolyn M. Murray<CMuuray@k piaromcom>
Date: Tue, May 26, 2026 at 5:37 PM
Subject: North Andover/East Mill 40B: Please Direct Correspondence to the ZBA Chair
To: Michael Lis<mUs@nouthandoverma.gov>, Judi Barrett<judi@baurettpianningiic..c.om>
Cc:Andrew Shapiro <ashapiuo nouthandovevnia.gov>, Jean Enright<je:ndght@northandove:uma.gov>
Mr. Chair,
I am circling back to you about the questions raised by Mr. Sarnie in his email below. Mr. Sarnie's questions focus on
the impact of the pending East Mill 40B application (the "Project")to prior permits issued for the redevelopment of the
mill complex, summarized as: 1) how the proposed shared parking at the Project relates to shared parking identified in
the previously approved Avalon project and 2) how the number of units proposed for the Project impacts prior
permitting "commitments" noted in the various approvals for the phased redevelopment of this site. Mr. Sarnie also
challenges the necessity of 296 units as making the project economically viable, but where we have previously
discussed the process to review a developer's pro forma during the public hearing, I will not address that issue here.
VAI's April 24, 2026 parking demand study, with which the Board's peer reviewer, VHB, concurs, states the 40B project
site will provide 506 spaces on site, which appears to be sufficient to meet the 85th percentile peak parking demand for
the Project alone (431 spaces). VAI's report included the 103 shared parking spaces adjacent to Avalon North as
being within a 2-minute walk to the Project site, and while it is possible that some residents of the Project could use
parking spaces within that shared lot, the 40B Project is not dependent upon the use of that shared lot. Accordingly, it
appears that the first question has been answered by the traffic/parking studies.
With respect to the second question, Mr. Sarnie questions certain "commitments" made in the April 4, 2023 Notice of
Decision of the Planning Board for a Subdistrict A Definitive Master Plan Special Permit purporting to limit with the
number of units "proposed"for Lot 3, also referred to as the "Parking Garage Parcel". By way of background, I have
reviewed numerous decisions issued for the East and West Mill complex dating back to 2018, many of which recite the
procedural history and prior approvals for the redevelopment of the mill complex. To summarize, three phases where
envisioned:
1. Phase I — Historic Mill Building: Located on Lot 1 of an approved subdivision plan (now 1 High Street), this
phase consisted of the conversion of commercial space to 70 residential units with increased parking, but
as of the April 4, 2023 Planning Board decision, only 27 of the 70 units were actually constructed, and this
phase was deemed complete by the Planning Board in 2019. See attached April 4, 2023 Notice of Decision
at Findings 6-8 on p. 3, recorded at Book 17755, Page 8580.)
2. Phase II —East Mill Flats: Located on Lot 2, now 65 High Street, consists of 51 residential units and was
originally part of Phase II.B. of the Master Plan approved in January 2018.
3. Phase III — Parking Garage Development— Located on Lot 3 and referred to as the "Parking Garage
Parcel." In the April 4, 2023 Planning Board Notice of Decision, Finding 6 states: "The original PDD
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5/28/26, 11:22 AM Town of North Andover Mail-Fwd: North Andover/East Mill 4013: Please Direct Correspondence to the ZBA Chair
Master Plan called for 140 new residential units to be built as part of Phase 1113.A portion of those units (51
units) were permitted as part of East Mill Flats (Phase 11 referenced above). The remaining 89 units are
proposed for parcel 3, also known as the `Parking Garage Parcel.' There are no current plans for this
development." (emphasis added). This decision also notes at Finding 10: "Lot 3 is proposed as remaining
for parking at this time, any proposed change that would add new uses or structures would require approval
by the Planning Board as an amendment to the Subdistrict A Master Plan Special Permit.
As you are aware, the 40B Project is proposed for the Parking Garage Parcel. Findings 6 and 10 above relative to the
Parking Garage Development is referenced in Mr. Sarnie's email below in which he questions whether the developer
"is legally bound to that prior commitment," preventing them from now claiming that a higher density is "necessary". In
other words, Mr. Sarnie views the reference to "the remaining 89 units... proposed for parcel 3" as a binding
commitment on the developer, prohibiting the developer from now seeking more than 89 units. Unfortunately, Mr.
Sarnie overlooked the statement in Finding 6: "There are no current plans for this development." While 89 units
may have been discussed for the Parking Garage Parcel, as Mr. Sarnie identified, Finding 10 required prior approval of
the Planning Board to develop this parcel as an amendment to the Subdistrict A Master Plan Special Permit. Reading
these together, it is my opinion that there was no firm commitment in the April 4, 2023 Planning Board decision and
certainly no separate approval of only 89 units on the Parking Garage Parcel.
Even assuming that there was a prior commitment or approval to construct only 89 units on the Parking Garage Parcel,
that prior approval came under a Planning Board special permit process under the zoning bylaws adopted for the
redevelopment of the mill complex. The developer is not compelled to construct those 89 units, as evidenced by the
discussion above regarding Phase 1. Moreover, a special permit decision can be modified, as has been the case on
several occasion, so the developer could seek to change the 89 units for the garage parcel under a modification to the
special permit.
Regardless of the special permit process allowed under the Town's Zoning Bylaws, a developer is not prohibited from
proposing a new project, such as an application under G.L. c. 40B. In so doing, the developer is not bound by prior
zoning decisions rendered for a site, and a 40B applicant need not comply with the Town's Zoning Bylaws, if waivers
are granted. I note that in the context of G.L. c. 40B, an applicant may request waivers from having to comply with
local zoning bylaws. "Zoning waivers are required solely from the `as-of right' requirements of the zoning district where
the project site is located; there shall be no requirement to obtain waivers from the special permit requirements of the
district." See 760 CMR 56.05(7). Accordingly, the special permit provisions of the Downtown Overlay Subdistrict A
Historic Mill Area and any special permits rendered thereunder, are irrelevant to a 40B application, which must be
evaluated on its own merits and pursuant to the rules governing G.L. c. 40B. Finally, as you are aware, the ZBA acts in
place of all local boards, including the Planning Board, with respect to an application under G.L. c. 40B, so the
requirement contained in the April 4, 2023 Planning Board decision that changes to the Parking Garage Parcel must be
approved by the Planning Board does not apply to a project presented under G.L. c.40B.
Let me know if you have any further questions or how you would like this to be addressed at a future ZBA hearing.
Thank you.
Carolyn M. Murray, Esq.
KP J i
10'1 Arch Street, '12th I:::loot
Boston, MA 02110
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5/28/26, 11:22 AM Town of North Andover Mail-Fwd: North Andover/East Mill 4013: Please Direct Correspondence to the ZBA Chair
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From: Michael Lis <u°L hs@nortd ando germ . ov>
Sent:Wednesday, April 22, 2026 5:02 PM
To:Terri MacNeil <tmacrieuU@riio tharii overm . ov>; Carolyn M. Murray<Cll urr y k ppavv.com>;Judi Barrett
<yu dd @barrett U nnurogUUc.com>
Subject: Fwd: Please Direct Correspondence to the ZBA Chair
Hello Ms. Murray,
Andrew Sarnie has approached me with a number of legal questions. I'm afraid I'm not entirely sure what he's getting at,
but it appears that he feels that this project is somehow in violation of the terms of the Avalon project, and he's asking if
those agreements are enforceable to prevent the 0 Prescott development.
Would you be able to take a look at this and see if I have it right and whether there's anything that we should be
considering?
Thanks,
--M i ke
---------- Forwarded message---------
From: Andrew Sarnie <asarnue@hotniauLcom>
Date: Wed,Apr 22, 2026 at 3:08 PM
Subject: Re: Please Direct Correspondence to the ZBA Chair
To: Michael Lis<niuus@northandovernia.gov>
Hello Chair Lis,
I focused on a couple of legal questions I was looking to have addressed and answered by yourself or town counsel.
The first relates to the April 4,2023, Notice of Decision(Bk 17755 Pgs 10-19). RCG asked the town to modify the special permit,and
the town approved with the Finding of Facts which were agreed to by RCG at the time of approval.
Specifically, I wish to highlight the language in Section 6, Phase III(Parking Garage Development),which states:
"The original PDD Master Plan called for 140 new residential units...A portion of those units(51 units)were permitted as part of the
East Mill Flats(Phase II referenced above). The remaining 89-units are proposed for Parcel 3, also known as the'Parking Garage
Parcel."
https://mail.google.com/mail/u/O/?ik=fObefc9b3b&view=pt&search=all&permthid=thread-f:l 866444157115229415%7Cmsg-f:1866444157115229415&s... 3/6
5/28/26, 11:22 AM Town of North Andover Mail-Fwd: North Andover/East Mill 4013: Please Direct Correspondence to the ZBA Chair
And Fact 10( Bk 17755 Pg 13),which explicitly states that any change to Lot 3(the garage parcel)must go back to the Planning
Board.This is a"pre-existing" condition of the land's development.
Is the Town Counsel reviewing whether the developer is legally bound by that prior commitment, preventing them from now
claiming that a higher density is'necessary'for the project's economics?"
Also, is Counsel looking into how this specific jurisdictional requirement interacts with the current 40B application to ensure the
Town's established oversight isn't bypassed?"
Given that the developer, RCG North Andover Mills LLC,formally accepted this 89-unit limit for the parcel in question as recently as
2023, I am seeking confirmation on the following:
1. Enforcement of Prior Caps:Does the Town intend to hold the developer to this 89-unit ceiling?If the developer now claims
that 296 units are"necessary"for economic viability, how does Counsel reconcile that with their 2023 agreement that 89
units was the appropriate density for this specific lot?
2. Equitable Estoppel: Because the developer, RCG North Andover Mills LLC,accepted the benefits of the 2023 approvals,
current objections argue they should be legally"estopped"from now claiming those same density limits are"uneconomic"
My second question deals with Cumulative Project Financials&Limited Dividend Math. Identifying sub-phases 2a and 2b clarifies
that the developer has already executed and profited from a significant portion of the Master Plan.
Are realized profits from the sales of phased parcels from the East Mill campus being factored into the 40B "limited dividend"
calculation to prevent an artificial inflation of"need" on the remaining parcel?
In Summary, I request legal clarification on two specific points regarding the current 40B application for Parcel 3 and its relationship
to the existing East Mill campus.
1. Enforceability of Prior Commitments(2023 Decision)
In the 2023 Notice of Decision (specifically referencing Findings of Fact#6 and#10),certain commitments were established by RCG
as part of the overall development plan. It appears that the applicant is now seeking to undo or bypass these established conditions.
I would appreciate the Board's perspective on the legal standing of these prior commitments.Specifically:
• Once a developer has accepted the benefits of a previous decision, are those findings and conditions legally binding in
perpetuity for the site?
• Does the Board view the attempt to rescind these commitments—after the developer has already realized the advantages of
the initial phases—as a"bad faith" negotiation?
2. Financial Transparency and"Double Dipping"
Regarding the applicant's claim of economic necessity for the Parcel 3 40B project:
• Have the financial gains from the sale of the previous phase of the East Mill campus been factored into the current 40B pro
forma?
• If those significant profits were realized from the same overall campus, is the developer required to account for them to
prove a genuine economic need for the current density requested?
I believe these answers are critical to ensuring the town's safe harbor protections and the integrity of the zoning process are
maintained. I look forward to your response and having these points discussed at the next scheduled meeting.
Sincerely,
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5/28/26, 11:22 AM Town of North Andover Mail-Fwd: North Andover/East Mill 4013: Please Direct Correspondence to the ZBA Chair
Andrew Sarnie
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From: Michael Lis <u°L Hs@nortd ando germ . ov>
Sent: Saturday, April 11, 2026 8:07 AM
To: asarn e@hotmauU.com < s rr6e hotm H.com>
Subject: Please Direct Correspondence to the ZBA Chair
Hello Mr Sarnie,
Our consulting counsel, Carolyn Murray, notified me that you left a voice mail asking to discuss the 0 Prescott St
application.
Please direct all correspondence to me, and where appropriate I will endeavor to address your questions in the next
meeting.
Thanks so much,
--Mike
Michael Lis
Chair
North Andover Zoning Board of Appeals
niuus@nouthandovevma.gov
(781)534-2719
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Michael Lis
Chair
North Andover Zoning Board of Appeals
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5/28/26, 11:22 AM Town of North Andover Mail-Fwd: North Andover/East Mill 4013: Please Direct Correspondence to the ZBA Chair
niuus@nouthandovevma.gov
(781)534-2719
All email messages and attached content sent from and to this email account are public records unless qualified as an
exemption under the Massachusetts Il3ublllliic IlRec urds Ill,,,,,aro .
Visit us online at mmew.nortlhandoverma.gov.
Michael Lis
Chair
North Andover Zoning Board of Appeals
niuus@nouthandovevma.gov
(781)534-2719
KP-#1035770-v1-NAND_East_Mill_40B_PB_04_04_2023_decsn_at_17755_8580.PDF
2594K
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