HomeMy WebLinkAboutJENSEN, RICHARD (TO PLAiN'IiFF'S .AWORNEY: Pleaseirole Type o
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COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT
CIVIL ACTION
No, 3465
Charlotte P. Rea and
United Freightways, Inc.
..................••............................... .......... ..... ................. Plaintiffs)
raEk Ser�j Jr. .A•lfrfd E. ri e]bl y�tillia Sal
outsrusdLo aures o , �Tr, , Walter am te[c'owski,
al hh J y e J>l, , t h��Dohe�t�, a ted are mem ers of the
o rd o Rpteah'o t�e. ...
wn of North Andover
SUMMONS
To the above named Defendant: inhabitants of the Town of North Andover
Eaton
You are hereby summoned and required to serve upon ................. ..-&...Chandler r.... ....... ................,
plaintiffs attorney, whose address is ........1I..L awrence.Street, Law renee, Masa. , an answer to the
complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclu-
sive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief de-
manded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk
of this court at ....................] i +:..Ma................s. .• either before service upon plaintiffs-attorney or within a reasonable
time thereafter.
Unless otherwise provided by Rule 13(a),your answer must state as a counterclaim any claim which you
may have against the plaintiff which arises out of tho transaction or occurrence that is the subject matter of the
plaintiffs claim or you will thereafter be barred from making such claim in any other action.
Wurmu, WALT= H. McLAucmaN, Esquire, at Salem, the twenty-second
day of September, , in the year of our Lord one thousand
1975 nine hundred and seventy-five.,
r? AMR J.L.YQM y
a T_Q`�1V6Rtt ;
Clerk
NOTES:
1. This summons is issued pursuant to Rule 4 of the Messachwetts Rules of Civil Proced e.
�. '%hen more than one defendant is involved, the names of all defendants should ap ar in the caption. 1f KrPV sipmons is
.sed fer ,acf_ defmd:�r_t. each should l 3,d3 essed to the ga-ticu' 46viflb
W'
fov CP Form 1 7-74.500D D
Deputy She_ 'to
PROOF OF SERVICE OF PROCESS -
r r�" I hereby certify and return that on ..........:.......... ......__..................................... 197 , I served a copy of
the within summons, together with a copy of the complaint in this action, upon the within-named defendant,
in the following manner (See Mass. R. Civ, P. 4 (d) (1-5):
_.......................<.................................................................................................................................................................... .........
Dated: , 187 ........................................................................
N.B. TO PROCESS SERVER:--
-PLEASE PLACE DATE YOV MAKE SERVICE ON DEFENDANT IN
THIS BOX ON THE ORIGINAL AND ON COPY SERVED ON DEFENDANT.
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COMMONWEALTH OF MASSACHUSETTS
F4 ESSEX, SS. SUPERIOR COURT
. C. A. No.
i
Charlotte P. 'Rea and )
United Freightways, Inc. )
Plaintiffs )
vs. )
Frank Serio, Jr, )
Alfred E. FrizeRe )
William N. Salemme ) �j
R. Louis DiFruscio ) COMPLAINT —
t, James D. Noble, Jr, )
Walter Jamitkowski )
Ralph Joyce ' Jr. )
` Stephen R. Doherty )
As they are members of the ) '
Board of Appeals of the Town)
of North Andover )
and )
Inhabitants of the Town of }
North Andover )
Defendants )
This is a complaint under the provisions of General Laws of Mass.
Chap. 40A Sec. 21, as amended by Chapter 1114 of the Acts of 1973.
E 1, The petitioner, Charlotte P. Rea, is a resident of the Town of
North 'Andover, Essex County, Massachusetts, and is the legal owner of
the fee and lessor of a portion thereof to the plaintiff United Freightways,
Inc. , of a certain parcel of land lying on the easterly side of Route 114 in
said Town of North Andover, containing approximately fourteen (14) 'acres
and presently zoned Industrial (1) District, as defined by the Zoning By-Laws
of the Town of North Andover, having acquired title by deed from Edward W. `
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;. ., y`'s,+F 4v '8^ t$.t4$�g 3 ';f;'.,� � t'.�cl<'f` ' •�';.�l. .4a.��^�.�.¢ y'!'x��y 4:��1�°� ?:#:�4 .
t` Saul, duly recorded in the North Essex Registry of Deeds B off- 1038 Page
4602 in 1965.
2. The petitioner, United Freightways, Inc. , is a Massachusetts
corporation having an usual place of business at 671 Chestnut Street, in said
North Andover, and leases from petitioner Charlotte P. Rea, approximately
four (4) acres of the southerly section of the fourteen (14) acres referred to
l -.
in Item 1. , lying between said Route 114, so-called, and Towne Street, and
s .
used for storage and curing and processing of its product.'
3. Each of the individual defendants is, and at all material times has
been a resident of the Town of North .Andover, Essex County, Massachusetts,
t, y, and a member of the Board of Appeals, which Board is organized and existing
under the Zoning By-Laws of said Town of North Andover.
4. The Inhabitants of the Town of North Andover is a body politic
situated in Essex County, Massachusetts.
5. The plaintiff, United Freightways, Inc. , has leased and used the
premises referred to in Item 2, hereinabove since early 1963 to store and
e
cure wood chips and bark purchased by it from lumber and pulp mills in
4 Maine and New Hampshire, and to, when cured, deliver to farmers, land-
,. scapers, developers and garden centers in the area who purchase the finished
product from it, and to store lime for delivery to farmers, landscapers and
garden centers in the area who order and purchase it.
6. on or about April 15, 1975, the Building Inspector of the Town of
} North Andover, ordered the plaintiff United Freightways, Inc. , 'to cease the
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10. That the plaintiff United Freightways, Inc. , has occupied the
premises and used it a,4 it is presently using the same since 1.96.3 without
increasing; the capacity except, as seasonally there is less demand for U16
product.
11. That immediately prior to the use and occupancy by the plaintiff
United Freightways, Inc. , the premises were leased and used by the Common-
wealth of Massachusetts for storage and processing of sand, gravel and salt
for the maintenance of roads in the winter months and the storage of sand and
gravel and other components and equipment for the repair and maintenance of
the roads in the spring, summer and fall months.
12. That prior to the lease and use of the premises by the Common-
wealth of Massachusetts as set forth in Item 11. , the late Arthur Farnham
used thepremises as a sawmill and lumber yard for the processing,
4` storage and curing of logs to finished seasoned lumber for himself and for
)�• others in the .area bringing logs and timber to the site to be cut and
y processed by:him and which, by the Zoning By
adopted in 1943, was
a permitted use.
` 13. That there is no area zoned in the Town of North Andover where
y4 ;
such production and storage and processing as done by the plaintiff United
1
tv Freightways, Inc. , is allowed or contemplated.
14. That the Board of Appeals in arriving at their decision to deny `
the establishment 'of,a duly constituted legally existing,non-conforming use
of this four (4) acre parcel, refused to consider the undisputed history of
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the use of this parcel and the use and operation of those who leased or
owned the parcel prior to United,Freightways„ Inc. 's leasing in 1963, and
arbitrarily denied United Freightways , Inc, its rights to establish the
continuationof a closely similar use in its judgment, all without regard to
the rights of the said plaintiff,
15. That the decision of the Board of Appeals denying the determina-
tion that the;operation carried on was ,a: duly constituted legally existing non
r . conforming use by the plaintiff United F.reighttivays, Inc. , was prompted by
influence other than the,evidence'and facts presented and was not warranted
on any facts presented to.it.
16. That the decision of the Board of Appeals:denying the variance by
the plaintiff United Freightways, Inc., was prompted by influence other than
the evidence'and facts presented and was not warranted on any facts presented
' to it,
' 17. That the Board of Appeals in arriving at its decision to deny the
plaintiff United Freightways, Inca's request for a variance, refused to
consider the undisputed evidence of the need of the said plaintiff and denied
the variance by exercising whimsical, arbitrary and capricious and un
" reasonable judgment without regard to the public good or the rights of the
plaintiff.
x 18. That the decision of the Board of Appeals is invalid and not a
. ,proper exercise of its function under the Zoning By-Laws of the Town of
,. North Andover and Chapter OA, 'Sec. 15 of the General Laws of Massa-
ti
thus ett s.
Page- 5
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„ . . 19. That the,decision of the Board of Appeals arrived at by arbitrary,
whimsical and capricious judgment deprives the plaintiff United Freightways,
T
Inc, of duc process of law in respect to its property rights.
20. That the plaintiff is aggrieved by the decision of the Board of
” Appeals arrived at in said arbitrary, tiuhinzsical and capricious mannc:z
'.ll I
WHEREFORE,
THE PLAINTIFF ASKS �TIIiS HONORABLE COURT
(1) That the findings, rulings and decisions of the Board of;Appeals
denying that the plaintiff United Freightways, Inc. ,, use of the
premises as a duly constituted legal non-conforming use be
annulled.
(2) That the findings, rulings and decision of the Board of Appeals
denying the plaintiffs application for a variance be anziulled.
,. (3) For such other and further relief as this Honorable Court may
deem meet and, proper.
a
Respectfully submitted,
UNITED FREIGHTWAYS, INC, and
CHARLOTTE P. REA '
B ' their Attorneys
EATON & CHANDLER
By
James H. Eaton III
*` 8 Bay State Building
Lawrence, Mass. 01840
Tel, 685-5123
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TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
E _
August 28► 1975
United Freightways, Inc.
(Charlotte P. Rea)
"Pogamy Hole";
Petition No. 8—'75..
11r. Joha, J. Lyons, Town Clerk
r Tarn Office Building
'> north Andover► Massachusetts
Dear IX. Lyons:
A public hearing was held by the Board of Appeals on July 9, 1975 uponapplication of l
United FreiC7htways7 Inc. (Charlotte P. Rea) who requested a variation of Section 8.2
and Sectio:. 4.129 (14) of the Zoning By-Law vo as to permit the completion of coa truc—
"' tion of storage shed and proposed loading platform and to store up to 50,000 cu. 'yds.
of, ::ood-`chips and bark and up to 250 tons cf lime to be sold at erholesale to conncrcial
purchasers in bulk. - No sales to be permitted on the premises and all storage to be
exposed. The location is the east side of Rte. 114, west side of Towne Strect and
}
Imo-own as "?ocamy hole". The following members were present and voting; ' Alfred U.
1 r zelle, Actin„ Chair;.-kn; William N. Sa.lemme; Louis Dirruscio; James D. Noble, Jr.;
and Asso. :Member, 'dalter Jamitkowski.
ine hearing Yras advertised in the Latrre'rrce Za le-Tribune on June 26 and July 3, 1975
and all abutters were duly notified by regular mail.
In secking the variance requested`above'the petitiazer, in essence, as;:ed the Board to
pass -on two questions. First, to determine that the use of the land in question i:, a
la,,ful non—conforning use so as to enable the Board to allow construction of a building;
4r.w storaCc of materials on the land under Section 8.2 of the By-Law and, second, if
` the Board should not so determine that it is a lawful non—conforming use then to grant
a variance of Section 4.129 (14) to enable such use.
To auppert its first contention, the petitioner submitted a six page memorandum wherein
i. outlined the history of the site prior to the use by the petitioner and subsc_iucnt
to the leasing of the site 'by the petitioner. Prior to 1953, the year in which the
petitioner began using the land for the storing and curing of barkand woodchips, the
1 :.d was used as a lumber yard and storage and, immediately preceeding the petitioner's
ase, tre Commonwealth of. Xassachusetts used the land for the storage of sand, salt and
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AMS
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No ONppVEREM SS.
8;1BDIVISLOK T3XNAM
WAs This does little mord than skin the surfaoo; the governing statute
Ot G,L, e. 411 §$ 81 b through 81 QU, inclusive.
ftt
,kjMMMrrWat 1n applisant MX submit such a plan to the Planning
Board, lout if he does so he Rust=
1) submit a copy to the Board of Health, and
2) give written netise to the Toga Clerk that be has svbmittod
such plans.
In this event, the Plaanisg Board Rust approve or disapW*vo the
—� preliminary plan within sixty days, notifying the Torn Clerk of its action.
(There is no requirement of action Ivy the Board of Hoaltb on the submitted
pr*liminary plan.) [J81 s]
ve
An applicant lust file his definiti plan
with the Planning Beard Pd with
91 Bea of ti, obi jb (f81 U), notifying the Town Clerk that he has done to. [§81 T)
The Board of Health then has forty-five days within which to report in so to writing
to the Planning Beard, approving or disapproving the plan; failure
shall Ivo dossed to 'so approval joy the board of Health. The Board of Health
report Ray require the Planning Board to approve the subdivision only son
condition that no louilding or structure shall joe 'suilt ..... without consent
by . .. .. (tho Board of Health)... .." [§81 U]
The Planning Board cannot take final action until after=
1) there has joeen a public hearing, notice of .hich shall have 'seen
given by pu'slication at least ten days prior thereto, and by
nailing a copy of the advertisement to all ajoutters. [f81 T] , and
2) the Board of Health shall have reported to it (or shall have
failed to fits a report within forty--five days)s and
3) it shall have ojotained security, in the form of a joond, a deposit
or a covenant, for the construction of ways and the installation
of utilities in accordance with its regulations. [§81 U]
The Planning Board gust take final action within sixty d.ay$ after the submission
of the definitive plan, unless an extension of time is agreed upon at the
written request of the applicant; notice of such an extension must 'se filed
with the Town Clerk. [§81 U]
Upon taking final action, the Planning Board mustt
1) file a certificate of its action with the Town Clerk, who shall
record a copy of the same 'Jr. a book kept for the purpose," and
2) send a notice of such action to the applicant by registered mail. -�
81 U
[§ ]
Twenty days thereafter (if there has loon no appeal) , the Planning Board shall
cause to be made upon the plan a written endorsement ofits deliver roval (if
tits
final action on the plan wast® approve , ��1
and plan
the applicant. [§81 d]
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To Whom it`My G�►aaeri#t ;
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Tho records df ';t,2t3 :oftioe show-1that w
Ion ant intro e�'teot in aaoor, '09 with Artiale134
of tho Annual Adjowx ed Toft MeetU% :bald
March
Very' trulg 7m.'sr
t`
JOHN . LYONS
4
spso0ea e�$ ,�i� �►o�t�.toove .uI ; .
'�abt �. :1- "
March 2, 1955
PLANNING BOARD OF NORTH ANDOVER
Recommendation
The Planning Board of North Andover hereby recommends
that the Board of Appeals be appointed as the Planning
Board of Appeals under the Subdivision Control Law.
Nicholas F. Nicetta, Chairman
Howard Gilman, Secretary
Rabbi E. Finck, Esq.
Raymond Broadhead
Frank Driscoll
jcb
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TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
" August 28, 1975
United Freightways, Ino.
(Charlotte P. Rea)
"Pogary Hole"
Petition No. 8-'75,
i•:r. Joxi J. Lyons, Town Clerk
TO n Office Building
,Porth Andover, %ssachusetts
Dear i�:r. Lyons
A public hearing :.as held by the Board of appeals on July 9, 1975 upon application of
United Frei,;htwa.ys, Inc. (Charlotte P. Rea) who requested a variation of Section 8.2
"and Section 4.129 (14) of the Zoning By-Lair so as to permit the completion of conrtruc-
" tio: of storage shed and proposed loading platform and to store up to 50,000 cu. yds, '
of uood-'chips and bark and up to 250 tons of lime to be sold at wholesale to commercial
parcha--ars in bulk. No Uales to be permitted on the premises and all storage to be
e>.posed. 'Thc location is the east side of Rte. 114, west side of movne Street and
. o�z as "PoL3„-f "role". The following members were present and voting: Alfred E.
rizalle, 'Actin, Clair;.an; �?illiam N. Salemme; Louis Dirruscio; James D. Noble, Jr.;
and Asso. ,.Member, 11alter Jamitko.rski.
The hearing fas advertised in the Lawrdnce rale-`i'ribune on June 26 and July 3, 1975
511 and all abutters were duly notified by regular mail.
In zeckinb the variance requested -above the petitioner, in essence, acized the Board to
pn.ss -on two questions. First, to determine that the use of the land in question is a
laa;fu non-conformini; use so as to enable the Beard to allow construction of a building
St
orage of m terials "on the I-nd under Section 8.2 of the By-Law and, second, if
the Doard ,should not"so determine t'ha.t it is a lawful non-conforming use then to grant
a variance of Section 4.129 (14) to enable such use.
To rapport its first contention, the petitioner submitted a six page memorandum therein
it outlined the history of the site prior to the use by the petitioner and subsequent
'. to the leasing of the site by the petitioner. Prior to 1963, the year in which the
petitioner beg•_r. usinb.the land for the storing and curing of bark,and rroodchipy, the
land was used as a 2u:; e �rd and storage and, immediately preceeding the petitioner's
ase, tne Commonwealth of Massachusetts used the land for the storage of sand, salt and
$u"P'*•- `i�'rgy, r r. _ .+ niR�rx "'NN".. �'+a.. r '% � x�•�- ,
page :-2
United Freightways, Inc.
Travel and equipment to .maintain roads. The land in queotion' is in the Industrial 1
Diotrict under the pro-'ent By-Ian;. A review of.thQ Zoning By-Lawn and amondmentr, --Inco
11'.3 by the 'Doird; indicated that the land was neve r;zaned for the use Vrhioh is presently
being carried on by the petitioner.
l}o: f,otion of I!r. Salommo and second by ttr. Jamitkowski, the Board voted unanimously
to M."MY the application on the provision" of Soction 5.2 of the Zoninr, By-Law b-t ca on
r ti.e ;epoetin;; rc! Lonin,;, To qualify ae a lawful non-conforming; u e the u::e mu:.-,L have been
3,zwf`i11y non-conformin- at the time of pacnage of,this By-Law-and any prior proii-iOil^
of the BJ-parr. The Board found t;zat the use was not lawful at the relevant times. :he
?oars fu-'her determined that even if the use, namely storage, eras laz.r£ul at the appro
priate limo the use has since changed its character so as to make it ruzlrt:flil in that
t1ic petitioner has passed over the line from storage to that of processing by curia,
"barkand : off chips,; which the petitioner admits, requires con--tant manipulatin; to pre-
vcnt spontaneous conbustion and, accordingly, fails"to meet the definition o, a lawful
a4 non-conforming use.
"after so deter,ining that the prerent uae is an unlawful non-coyforming use, the Board
a.animously voted to DMY the requested variance from Section 4.129 (14) upon the motion
of 1€r. Noble and second by Mr. 5alerame since the petition cannot pass the test of Section
C) pa icularly that granting the variance would substantially derogate from the i:ltent'
cund purpose of the By-Iaw.
'Very ,truly yours, <
'r AClu',2) C7 '6PPZ"S
Alfred E. r zzelle, JIF.I1J`tik� -�
Vice-Chairman
<� D m
y
_ 1
C T.
�e^,tenor. i7, i975
er t:i£ied Ln he a true stat. .'t:is
�sioa c.�ire s L!cto� ti, �` �,
tt► A1411?11 •b
TOWN OF NORTH ANDOVER
MASSACHUSETTS
:. BOARD OF APPEALS
C,
NOTICE OF DECISION
Date .Auo s k .29* 19.75 . . . . . . . . . .
Petition No.A.X75. .
Date of Hearing July. .9,. 1975. . .
Petition of UNITM i'T 21G:k,ii'..S1 IXC. .(Charlotte.P.. Rea). . . . . . .'
i Premises affected "Po, arj Hole"- Rte. •1th ". . . . . . . . . . . . . . . . . . . . . . . . .
,f, Referring to the above petition for a variation from the requirements of the . .
'' North Andover Zoning BJ=L�-, Section 8.2, and Q.129 .(14). .
the completion of construction of storage shed and proposed Loading
'•,. soas to permit piatfo-" and to store up to. 54 044. cu. ydc. of.'.wood.chips .andt bark and up
'y to 250 tons of lime to be sold at wholesale to commerical purchasers in bulk. No sales
to be .permitted on.thepremises. and.all: storage; to be ."-posed. . . . '. . . . . . .°.
!.. After a public hearing given on the above date, the Board of Appeals voted to ., DB= . :; . the
Variance 7�i5d tliPtriiiS7L{iid �{Si�fi�icetd5�:fdi3C{ {YeCa
.n
RatttiiC . _ . .
Scgned
llfred E. Frizelle, Vice--Chairman
"i�Iiam N. Salemme
o
' Louis DiFruscio
�1
.1
I,V14511, n,i1W,L1C 1�`U£
�. as James D. Noble, Jr.
f 3lalter Jamitkowskij Asso. Member
Board of Appeals