HomeMy WebLinkAboutUNITED FREIGHTWAYS INC COMMONWEAL'T'H OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT
C. AR No.
Charlotte P. Rea and } �_
United Freightways, Inc. }
Plaintiffs ) SEP 18 1975 N
} JWIN I tYNS
vs. ) n TOWN CLERK
MR(ANQQMA
.Frank Serio, Jr.
Alfred,E. Frizelle
William N. Salemme A)
R. Louis DiFruscio ) NOTICE OF FILING APPEAP
.a, James D. Noble, Jr. )
Walter Jamitkowski )
Ralph Joyce, Jr. }
w
Stephen p n R. Doherty )
As they are members of the. )
Board of Appeals of the Town )
of North Andover )
and a
Inhabitants of the Town of }
North Andover )
Defendants }
Notice is hereby given that the above plaintiffs being aggrieved by
the determination by the Board of Appeals of the Town of North Andover,
that the plaintiff United-Freightways, Inc. , is not a duly constituted
legally existing non-conforming use at the'premises which are the subject
matter of the Complaint, and by the denial of the plaintiffs' application
fora variance by the Board of Appeals of the Town of North Andover in
the above-entitled case have filed this day a Complaint in the nature of an
appeal with the Superior Court of Essex County; a copy of said Complaint
in the mature of an appeal, is"attached hereto.
Dated; September IB, 19fia
:Respectfully submitted,
By their Attorneys,
EATON & CHANDLER
By
•F
James H. Eaton, III
728 Bay State Building
Lawrence, ;Mass. 01840
TeL 685-5123
e 001Y at
Deputy Sherirf
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") 'COMMONWEALTH OF MASSACHUSETTS
!; ESSEX, SS. SUPERIOR COURT
` a C. A. No.
"r Charlotte Y, flea and )
" United Freightways, Inc, )
,. Plaintiffs )
�.� vs. )
Frank Serio, Jr. )
p ' Alfred E. Frizelle }
.< William N. Salemme )
,. R. Louis DiFruscio ) COMPLALNT
James D. Noble, Jr. }
Walter Jamitkowsk . )
Ralph Joyce, Jr. }
Stephen R. Doherty )
As they are members of the }
` Board of Appeals of the Toiti-n) '
�r of North Andover )
-" and )
Inhabitants of the Towyn 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,
` 1 The petitioner' Charlotte P. Rea, is a resident of the Town of
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North Andover, Essex County, Massachusetts, and is the legal owner of
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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
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j 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.
r�,o..y@ l fs'`?'�,"`.
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Saul, duly recorded in the North Essex Registry of Deeds Booj 1038, Page
,. 4602 in 1965,
2, The petitioner, United Freightways, Inc., is a Massachusetts
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corporation'having an usual place of business at 671 Chestnut Street, in said
North Andover, and leases from petitioner Charlotte F; Rea, approximately
{ four (4) acres of the southerly section of the fourteen (14) acres referred to
`i in Item. 1;, lying between sai.d'Route 114, so-called, and Towne Street, and
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r; used for storage and curing and,processing of its product,
3. Each of the individualdefendants is, and at all material times has
been a resident of the Town of North Andover, Essex County, Massachusetts,
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
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' situated' in Essex County, Massachusetts.
,•
S. The plaintiff, United Freightways, Inc„ has leased and used the
premises referred to in Item 2. hereinabove since early 1963 to store and
cure wood chips and bark purchased by it from lumber and pulp mills in
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.
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6. Cin 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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Page° 2 -
construction-of a shed for the storage of its equipment out of the weather as
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it allegedly appeared the use of the premises was not in conformity with the
Fndustri.al (1) District as set forth in the aforesaid Zoning By-Laws of the
Town of North Andover.
7, That on or about June 13, 19751, the plaintiffs filed with the
defendant Board of Appeals for the Town of North Andover, an application
requesting that it .determine that United Freightways, Inc. 's use of the
leased premises -was a duly constituted legal non-conforming use and it be
,. allowed under Sec. 8, 2 of the said North Andover ZoningBy-Laws to construct
a shed for the storage of its equipment and a loading ramp,
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8. That on or about June 13, 1975, the plaintiffs, in conjunction with
` + the application referred to in Item 7, filed with the defendant Board of Appeals
for the Town of 'North Andover, an application requesting a variance from
�,. Paragraph 14
Section 4:129/of the Zoning By-,laws of the Town of North Ancb ver and be
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I5 , allowed to continue to use the premises leased by the plaintiff United Freight-
ways, Inc,, for the storage of dime and the storage, curing and processing of
its product, wood chips and bark, and to be allowed to construct a shed for
the storage of its equipment and loading ramp.
9. That the Defendant Board of Appeals conducted a hearing on July9,
- 1975, and rendered a decision (a certified copy of which is annexed hereto
and marked "A") filed with the North Andover Town Clerk on August 29,
' 1975, on the plaintiffs' petition denying that the present use is a duly
r constituted legal non-conforming use and also denying the request for a
variance as set forth in Item 7, and 8.
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TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
August 28, 1975
United Freightways, Ino.
(Charlotte P. Rea)
"Pogamy Hole"
Petition No. 8-175
Mr. John J. Lyons, Town Clerk
Town Office Building
North Andover, Massachusetts
Dear Mr, Lyons:
A public hearing was held by the Board of Appeals on July 9, 1975 upon application of
United Freightways Inc. (Charlotte P. Rea) who requested a variation of Section 8.2
and Section 4.129 (14) of the Zoning Law so as to permit the completion of construc-
tion of storage shed and proposed loading platform and to store up to 50,000 cu. ydso,
of wood chips and bark and up to 250 tons of lime to be sold at wholesale to commercial
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 Street and
known as "Pogamy Hole". The following members were present and voting: Alfred E.
Frizelle, Acting Chairman; William N. Salemme; Louis DiFruscio; James D. Noble, Jr.;
and Asso. Member, Walter Jamitkowski.
The hearing was advertised in the Lawrence Eagle-Tribune on June 26 and July 3, 1975
and all abutters were duly notified by regular mail.
In seeking the variance requested above the petitioner, in essence, asked the Board to
pessKon two questions. First, to determine that the use of the land in question is a
lawful non-conforming use so as to enable the Board to allow construotion of a building
and storage of materials on the land under Section 8.2 of the By-Law and, second, if
the Board should nd so determine that it is a lawful non-oonforming use then to grant
a variance of Section 4.129 (14) to enable such use.
To support its first contention, the petitioner submitted a six page memorandum wherein
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 began using the land for the staring and curing of bark and woodchips, the
land was used as a lumber yard and storage and, immediately preceeding the petitioner's
use, the Commonwealth of Massachusetts used the land for the storage of sand, salt and
Page -2-
United Freightways, Ino,
gravel and equipment to maintain roads. The land in question is in the Industrial 1
District lander the present By-Law. A review of the Zoning By-Laws and amendments since
1943 by the Board indicated that the land was never zoned for the use which is presently
being carried on by the petitioner.
Upon motion of Mr. Salemme and second by Mr. Jamitkowski, the Hoard voted unanimously
to DENY the application on the provision of Section 8.2 of the Zoning By-Law based on
the following reasoning. To qualify as a lawful non-oonsforming use the use must have been
lawfully non-conforming at the time of passage of this By-Law and any prior provisions
of the By-Law. The Board found that the use was not lawful at the relevant times. The
Board further determined that even if the use, namely storage, was lawful at the appro-
priate time the use has since changed its character so as to make it unlawful in that
the petitioner has passed over the line from storage to that of processing by oaring
bark and wood chips, which the petitioner admits requires constant manipulating to pre-
vent spontaneous combustion and, accordingly, fails to meet the definition of a lawful
non-conforming use.
After so determining that the present use is an unlawful non-conforming use, the Board
unanimously voted to DENY the requested variance from Section 4.129 (14) upon the motion
of Mr. Noble and second by Mr. Salemme since the petition cannot pass the test of Section
9.5, particularly that granting the variance would substantially derogate from the intent
and purpose of the By-Law.
Very truly yours,
BOARD OF APPPFALS
0t1` o-4d-- e 9" 9 0ii f 0 l7
0
Alfred E. Frizelle, go
o� RECfIVE��a'�
Vice-Chairman
SEP V 1975 n
AIW:gb JOIE I LYONS
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construction-of a shed for the storage of its equipment out of the weather as
it allegedly appeared the use, of the premises was not in conformity,with the
T Industrial (1) District as set forth in the aforesaid Zoning By-Laws of the
Town of North Andover,
7, That on or about June 13, 1975, the plaintiffs filed with the
defendant Board of Appeals for the Town of North Andover, an application
g requesting that it determine that United Freightways, Inc. 's use of the
leased premises was a duly constituted legal non-conforming use and it be
allowed under Sec. 8. 2 of the said North Andover Zoning By-Laws,to construct
a shed for the storage of its equipment and a loading ramp.
8. That on or about June 13, 1975, the plaintiffs, in conjunction with
the application referred to in Item 7, filed with the defendant Board of Appeals
for the Town of North Andover, an application requesting a variance from
Paragraph. 14
Section 4:129/of the Zoning By-laws of the Town of North And)ver and be
ZI
allowed to continue to use the premises leased by the plaintiff United Freight
ways, Inc, for the storage of lime and the storage, curing and processing of
its product, wood chips and bark, and to be allowed to construct a shed for
the storage of its equipment and loading ramp.
9. That the Defendant Board of Appeals conducted a hearing on July9,
M 19750 and rendered a decision (a certified copy of which is annexed hereto
? and marked "A") filed with the North Andover Town Clerk on August 29,
19751 on the plaintiffs` petition denying that the present use is a duly
constituted legal non-conforming use and also denying the request for a
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variance as set forth in Item 7 and $.
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T, Page 3
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10. That the plaintiff United Freightways, Inc, , has occupied the ,
premises and used it as it is presently 'using the same since 1763 without
increasing the capacity except, as seasonally there is less demand for the
product,
11. That immediately prior to the use and occupancy by the plaintiff
L'rnited Freightways, Inc. , the premises were leased and used by the Conunon-
wealth of Massachusetts for storage and processing of sand, gravel and salt
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for the maintenance of roads in ' the «tinter months and the storage of sand and
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gravel and other component's 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 the premises as a sawmill and lumberyard for the processing'.
3 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
processed by him and which, by the Zoning By-Laws adopted in 1943, was
a permitted use.
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13. -That there is no area zoned in the Town of North Andover where
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such production and storage and processing as done by the plaintiff United
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 W acre parcel, refused to consider the undisputed history of
Page - 4 -
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jf6 the use of this parcel and the use and operation of these who leased or
xa owned the parcel prior to United Freightways, Inc. Is leasing, in 1963, and
? arbitrarily denied United Freightways , Inc. its rights to establish the
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1 , eoritinuation of a closely similar use 41 its Judgment,, all wit out rvgalAo to
h., ; he rights of the said plaintiff.
15. That the decision of the Board of Appeals denying the determina-
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tion that the operation carried on was a duly constituted legally existing non-
conforming use by the plaiAtiff United Freightways, Inc. , was prompted by
influence other than the evidence and facts presented and was not warranted
rr 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 influenceother than
the evidence and facts presented and was not warranted on any facts presented
Ai
to it.
t� 17. That the Board of Appeals in arriving at its decision to deny the
plaintiff United Freightways, Inc. '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.
18. That the decision of the Board of Appeals is invalid and not a
der the Zoning By-Laws of the Town of
proper exercise of its function un
I North Andover and Chapter 40A, Sec. 15 of the General Laws of Massa-
chusetts.
Page - 5 -
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TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
August 28, 1975
United Freightways, Inc.
(Charlotte P. Rea)
"Pogamy Hole"
Petition No. 8-975
Mr, John J. Lyons, Town Clerk
Town Office Building
North Andover, Massachusetts
Dear Mr. Lyons:
A public hearing was held by the Board of Appeals on July 9, 1975 upon application of
United Freightways Inc. (Charlotte P. Rea) who requested a variation of Section 8.2
and Section 4.129 114) of the Zoning By-Law so as to permit the completion of construc-
tion of storage shed and proposed loading platform and to store up to 50,000 cuo yds.
of wood chips and bark and up to 250 tons of lime to be sold at wholesale to commercial
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 Street and
known as "Pogamy Hole". The following members were present and voting: Alfred E.
Frizelle, Acting Chairman; William N. Salemme; Louis DiFruscio; James D. Noble, Jr.;
and Asso. Member, Walter Jamitkowski.
The hearing was advertised in the Lawrence Eagle-Tribune on June 26 and July 3, 1975
and all abutters were duly notified by regular mail.
In seeking the variance requested above the petitioner, in essence, asked the Board to
passion two questions. First, to determine that the use of the land in question i.n a
lawful non-conforming use so as to enable the Board to allow construction of a building
and storage of materials on the land under Section 8.2 of the By-Law and, second, if
the Board should notso determine that it is a lawful non-conforming use then to grant
a variance of Section 4.129 (14) to enable such use.
To support its first contention, the petitioner submitted a six page memorandum wherein
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 began using the land for the staring and curing of bark and woodchips, the
land was used as a lumber yard and storage and, immediately preceeding the petitioner's
use, the Commonwealth of Massachusetts used the land for the storage of sand, salt and
Page -2_
United Freightways, Inc.
gravel and equipment to maintain roads. The land in question is in the Industrial 1
District ander the present By-Law. A review of the Zoning By+-Laws and amendments since
1943 by the Board indicated that the land was never zoned for the use which is presently
being carried on by the petitioner.
Upon motion of Mr. Salemme and second b9Mr. Jamitkowski► the Board voted unanimously
to DENY the application on the provision of Section 8.2 of the Zoning By-Law based on
the following reasoning. To qualify as a lawful non-conforming use the use must have been
lawfully non-conforming at the time of passage of this By-Law and any prior provisions
of the By-Law. The Board found that the use was not lawful at the relevant times. The
Board further determined that even if the use, namely storage, was lawful at the appro-
priate time the use has since changed its character so as to make it unlawful in that
the petitioner has passed over the line from storage to that of processing by curing
bark and wood chips, which the petitioner admits requires oonstant manipulating to pre-
vent spontaneous combustion and, accordingly, fails to meet the definition of a lawful
non-conforming use.
After so determining that the present use is an unlawful non-oonforming use, the Board
unanimously voted to DENY the requested variance from Section 4.129 (14) upon the motion
of Mr. Noble and second by Mr. Salemme since the petition cannot pass the test of Section
9.5: particularly that granting the variance would substantially derogate from the intent
and purpose of the By-Law.
Very truly yours,
BOARD OF APPEALS
e
oy.'14k
Alfred E Frizelle, �p1 �D
D���At���
Vice-Chairman t1 p
SEP 911915 n
AEF:gb JOHN i LYONS
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TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
NOTICE OF DECISION
Date .August .29,. 19.75 . . . . . . . . . .
Petition No.. .$- 75. . . . . . . . . . . . . . .
Date of Hearing. . -July. .9, .1975. . .
Petition of UNITED.FREIGHMYS,. INC. .(Charlotte.P.. Rea). . . . . . . . . . . . . . . . . . . . . . . • . . .
Premises affected . .*Pogamy. Hole'.'. Rte. .114. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I
Referring to the above petition for a variation from the requirements of the . . . . . . . . . . . . . . . . .
North Andover. . . .. . . By .Lair. . pect.ioo.0.2. And.4.129, .(14). . . . . . . . .. . . . . _ . . . . .
the completion of construction of storage shed and proposed loading
so as to permit platform and.to. stor.e .up.to. .50,000. eu. .ydso. of :wood. chips .and.bark and up
to 250 tons of lime to be sold at wholesale to commerical purchasers in bulk. No sales
to. be. .permitted .on.the. premises. and •all. storage.to .be .exposed. . . . . . .
After a public hearing given on the above date, the Board of Appeals voted to . . .DEl9Y. . . . . the
. . . . Variance . . . . . . ... . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .
®�0� 10 1I r r� Signed
nn �
Alfred E. Friaell,e, Vice-0haian. . .
1975 �'
c'
William N. Salemme . . . . . . . . . . . . . . . . . .
Louis DiFrusoio
"' rtow►�c gK
. . . . . . . . . . . . . . I . . . . . . . . . . . .
NURIy � m` James D. Noble, Jr.
E@ a3 Walter Jamitkows1 d., Asso. Member
Board of Appeals
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TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
August 28, 1975
United Freightways, Inc.
(Charlotte P. Rea)
"Pogamy Hole"
Petition No, 8-175
Mr. John J. Lyons, Town Clerk
Town Office Building
North Andover, Massachusetts
Dear Mr. Lyons:
A public hearing was held by the Board of Appeals on July 9, 1975 upon application of
United Freightways, Inc. (Charlotte P. Rea) who requested a variation of Section 8.2
and Section 4.129 (14) of the Zoning By—Law so as to permit the completion of construc—
tion of storage shed and proposed loading platform and to store up to 50,000 cu. yds.
of wood chips and bark and up to 250 tons of lime to be sold at wholesale to commercial
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 Street and
known as "Pogamy Hole". The following members were present and voting: Alfred E.
Frizelle, Acting Chairman; William N. Salemme; Louis DiFruscio; James D. Noble, Jr.;
and Asso. Member, Walter Jamitkowski.
The hearing was advertised in the Lawrence Eagle—Tribune on June 26 and July 3, 1975
and all abutters were duly notified by regular mail.
In seeking the variance requested above the petitioner, in essence, asked the Board to
pass-on two questions. First, to determine that the use of the land 3x1 question is a
lawful non—conforming use so as to enable the Board to allow constructionof a building
and storage of materials on the land under Section 8.2 of the By—Law and, second, if
the Board should notso determine that it is a lawful non—conforming use then to grant
a variance of Section 4.129 (14) to enable such use.
To support its first contention, the petitioner submitted a six page memorandum wherein
it outlined the history of the site prior to the use by the petitioner and subsequent
tothe leasing of the site by the petitioner. Prior to 1963, the year in which the
petitioner began using-the land for the storing and curing of bark and woodchips, the
land was used as a lumber yard and storage and, immediately preceeding the petitioner's
use, the Commonwealth of Massachusetts used the land for the storage of sand, salt and
._...
Page —2—
United Freightways, Inc.
gravel and equipment to maintain roads. The land in question is in the Industrial 1
District under the present By—Law. A review of the Zoning By Laws and amendments since
1943 by the Board indicated that the land was never zoned for the use which is presently
being carried on by the petitioner.
Upon motion of I4r. Salemme and second by Mr. Jamitkowski, the Board voted unanimously
to DENY the application on the provision of Section 8.2 of the Zoning By—Law based on
the follotiti.ng reasoning. To qualify as a lawful non-conforming use the use must have been
lawfully non—conforming at the time of passage of this By—Law and any prior provisions
of the By-Law. The Board found that the use was not lawful at the relevant times. The
Board further determined that even if the use, namely storage, was lawful at the appro—
priate time the use has since changed its character so as to make it unlawful in that
the petitioner has passed over the line from storage to that of processing by curing
bark and wood chips, which the petitioner admits requires constant manipulating to pre—
vent spontaneous combustion and, accordingly, fails to meet the definition of a lawful
non—conforming use.
After so determining that the present use is an unlawful non—conforming use, the Board
unanimously voted to DENY the requested variance from Section 4.129 (14) upon the motion
of Mr. Noble and second by Mr. Salemme since the petition cannot pass the test of Section
9.5, particularly that granting the variance would substantially derogate from the intent
and purpose of the By=law.
Very truly yours,
BOARD OF APPEALS
,�d
U c�
Alfred E. Frizelle, c p °u
Vice-Chairman lt����(�� �
AEP:gb ' Jo
INK 1,. LYONS
North Andover, Mass,
September 15, 1975
Certified to be a true;ct3or
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.My commiision e�ires 6,' 6
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TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
NOTICE OF DECISION
Date .August .?9s. 9975 . . . . . . . . . .
Petition No.. .$-'75. . . . . . . . . . . . . . .
Date of Hearing. . .July. .9p .1975.
Petition of . .UNITED .FREIGNTUYS,. INC. .(Charlotte.P.. Rea). . . . . . . . . . . . . . . . . . . . . . . . . . . .
Premises affected . .'To uV.. Zol01, -. Rte. .114. , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Referring to the above petition for a variation from the requirements of the . . . . . . . . . . .. . . . . . .
North Andover Zoning. By-Lay. . $ectim.$.2. a4d.4.129 .(14). . . . . . . . . . . . . . . . . . . . . . . . . .
the completion of construction of storage shed and proposed loading
so as to',permit . platform and .to. store .up.to. .50,000. cu. .yds.. of. wood. chips .and.bark and up
to 250 tons of lime to be sold at wholesale to commerical purchasers in bulk. No sales
to be. .permitte.d .on.the. premises. and.all. storage.to. be •exposed. . . . . . . . . . . . . . . . . . . .
After a public bearing given on the above date, the Board of Appeals voted to . . .DENY. . . . . the
:11:111111:1@1 luill 1:
cixaac. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signed
. .Alfred. E. .P'rizelle, Vice—Chairman. . .
w. r
C3 �Gi fir,. William N. Salemme
. .
�, tY4Ns
Lows DiFruscio
. . . . . . . . . . . . I . . . . . . . . . . . . . . . . . . . . . . .
o �uftTli James D.• Noble, Jr.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
88 � Walter Jamitkowski, Asso. Member
Board of Appeals
i
Oversized Maps on file with the Town