HomeMy WebLinkAbout1953-06-08June $, 19%3
The meeting was ¢alled by the Chairman at 7:15 P.M, in the Town Building.
This was a Public N~arin$ .
Members present: Richard G. Whippel, Chairman~ Andrew E. Alvino, Secre~ry,
Henry E~ ~und~ Pe+~r Ritchie, Edward Reinhold.
An application was received from Dr. Joseph A. Maker requesting the approval
ef the Board for a non-conforming use permit se as to permit the co~truction
.of a building located at the corner of Main and Garden Streets~ te be eccupie, d
by doctors. This is to be a combined dectorts .and dentist's offices. The land
in question is current~ owned by, Davis & Fu~ber Machine Compsm~ but applicant
will purchase this land if the perm~t~ is granted.
Dr. M_~er was present and also Dr' Ceplikaz who is the ether deetor, who will
occupy the other office. Dr. Ceplikas stated that beth his amd Dr. Maker' s
present offices were grossly in.adequate and that they, were both in need o2
pleasant surroundings as well as in need of more room so that each ef them
would have an assistant and consultation rooms. He stated that there was no
space a~ailable in the business district that they could purchase for a clinic
of this type.
The type of buildi~.~ will be Cape Cod style~' very attractive in design and an
asset to the location which is vacant at this time. It will also be a source
of tax reveme for the town and this building will be so built that in case
ar~rt~g should happen it could be very easily converted into a home. Dr.
CepltWas also stated that they were applying for a nm-conforming use ~rmit'
which has to be renewed each year rather than a re-zoning permit for the
protection of all concerned~ and that this should also be a desireable protection
for the town and the abutters as well.
Since 90% ef the ~tients seen will be by appointment only~ Dr. Ceplikas stated
that he did not feel that there would be ar~ increase in traffic conditions as
there would never be more than three or four patients in the office at an~ one
$ime. This office would be closed at 9:00 P.M. in the evenings and would not be
open on Sundays and that they would also be closed on Wednesday and Saturda~
evenings. The doctor s tared that this was a new trend for modern doctors to
combine offices and that there were several such offices in Lawrence and Methuen
and other surrounding towns.
Mrs. Alden Jam~.s who is an abutter was present and was very much opposed to the
granting of this permit. She stated that she had bought her property which is
adjacent to the lot in question in 1~24 and was given to underst~__~t that it was
a strictly residential district. She stated that Garden Street is a dead end street
am/ that there are onl~ four houses on the street~ and that a~ne going into Garde~
Street usually uses her driveway to turn around in and that this has become very
annoying. She felt that if ther~ was going to be a business of this type on the
corner there would be more traffic on Garden Street, that the street was narrow and
that this would create a traffic hazard. She also stated that she was a woman in
poor health and had to rest the greater part of the day and retire very early at night
and she felt that the noise of cars~ the closing of the doors of the cars and the
.comings and goings of the people coming to this office would increase the problems
she already has. She stated that she is near a church and that the parking of cars
starts at a very early hour in the mor~$Bg and continues until almost noon and that
it has become very annoying.
Mr. Paul Robbins~ also an abutter on ~tu Street was present and also objected to
the granti~ ~£ this permit. He stated that he was a fairly newcomer to this area
June 8, 1953--Continued.
but that he also was u~er the impression when he bought his house that it was
a strictl~ residential district. He felt that it was a nob~a gesture that the
doctors were making~ but he stated that he had two small children that play
around and he felt that an~ increase in traffic would be dangerous %o their
welfare ·
Mr. John Nesking was pr.suni and although he is not an abutter~ he stated that
he lived across the street and he felt that a place ef business should not be
permitted in a residential area.
Mr. Brass,ur was-present and stated that he thought that the people in question
had been misled by the word clinic. He stated that there would be only two
doctors occupying these premises and no others. The hours would be short and
pm~d~nts would be seen by appointment on2y. Ne also stated that this was not
considered strictly business as., both men were professionals and that there was
a difference. He also stated that all the requirements of the building laws'
could be complied with except on one side and that 'that 'this was impossible
due'to the size of the lot. He stated that Mrs. Jam~s w~o l~ves on Garden
S~reet has a row er screen of heavy shrubbery which would cut off a lot of the
noise and that she would be at least 30 feet from the proposed building. In
accordance with Article II section c, this building wm~ld be in ~om~ormi~
with the area~ Ne stated that the entrance would be on Maim street amd that
Garden Street was not narrow but a full 40 feet and that there would be no
reason for people coming to the office to use Garden Street. In his opinion
this building would improve the neighborhood rather than be injurious.
Dr. Maker then stated that he had looked around for other locations and had
invest,gated another building at the corner of Main amd Merrimack Stree~s~
~m% that the expense of special wiring~ special plumbt-g ere. connected with
the t~pe of offices in question would be a very expensive deal to put thrcflAgh
in a house that was a~ady constructed. ~e also stated that living and working
on th same preml .es was a disadvantage that both he and Dr. ~ep ~l~k~s. wished
te avoid. Dr. ~aWer's o~fice is now located on the second r~oor an~ stairs are
another thing that they would like to avoid.
Motion was made and seconded and.it was voted to take this m~tter under advise-
l~nt.
An application for the renewal of a non-conforming use permit.was received from
Roland B. Hammond. Motion was made and seconded and it was voted ~e grant the
renewal of this permit for another year ~o Ro!~d N~mmond,
After discussion of the Maker application, a motion was .made and seconded and it
was voted te postpone the decision on this case until June 15 whorl the Beard
would meet again. Some of the members were not ,too familiar with the pr, reties
in question and wished te view the location be fore voting on the matter.
A letter was re~ived from Attorney Elwyn King as was requested by the.Board
te give an opinion on the status of a piece of prOp~X~y Owned by Mr. Gandetts,
on Middelsex Street. The following is a copy of this letter.
Board of Appeals~ N~rth Andover~ Mass.
Gentlemen:
M~V26, 1953
I have he,n asked tegive an opinion regarding the status of the store on Middle-
sex Street, near the corner of Waverley Road; which~as formerly occupied and owned
· June 8, lP53--Continued.
by Joseph Gaudette~ who died ~ecent~y. The pren~ses were owned by M~. G~udetts and
~s ~e, a~ who ~s s~ded b~m ~d now ~e sole o~r ~ ~ue of such
~e b~ld~n~ on the ~ses e~nsists efa one f~m~ ~e~, ~me ~om ef w~c~
(~e room me--st ~e ~et) ~s been ~ed ~ ~e ~ ~. ~udette as a s~
st,~ whe~ g~ce~es~ to,cs (soft ~s)~ cig~s~ ciga~ttes~ ice c~ ~ a
f~pate~t m~ecines ~ sold for ~ye~s. ~ At the t~ the ~g ~ws
we~ accepted f~r Nor~ A~over the s~ ~d ~en ~ used~f~r s~er~ y~
cont~ued te ~ ~ us~ ever since ~e zo~g ~w ~c~ effec~ ~1 ~. ~ette's
death em M~ 18, ~53~ S~ce ~em it ~s ~t ~en used as a sto~; ~s. ~ette
~ts~s ~ se~ the p~r~y ~d it is ~r~t to Em~, ~ ~m her s~d~t
~ we~ as ~ ~e s~int of a~ ~haser c~pl~ use of the s~, w~t
~ the ~ of a tras~e~e ef ~e ~e~y ~ to ~t~ use ~e~efe
~ ~ ~f the Zo~n~ ~-~w ,f North Andover ~ich ~ app~cable
"~icle V section l(a): ~st~g ~gs. Not~g ~ ~s ~-~w s~ p~-
~nt ~e contend use or~nten~ce ef ~ b~ing~ s t~ct~ er ~ses~ for ~e
~se for w~ch it is us~, ~r in the cenditicn ~ch e~sts at the ~ of the
accep~ce of this ~-~w ~ the T~ ~t ~ mo~o~o~ use s~ll be c~d~
er ~nded, ~d ~ build~g devoid ~ a ~co~o~ng use er uses
~ s~ be al~d~ e~rged, ~reco~ucted or e~e~ed ~ess such ~co~o~
use er ~es ~ c~ged ~ those uses aut~rized in the dist~ct ~ w~ ~e ~ldi~
is located, except as he~ter ~o~ded~"
"~cle V secti~ l(c)~ ~e~ ~sti~ nen-~o~g Use: ~ ~sti~
~n-confo~ use ~ ~ he~er ~tend~ ~ughout a~ p~ of a b~lding ~ch
de~te~ desired or ~ged for s~h use at ~e ~ of the ~cep~ce ef t~s ~-Law.
"(d)~ O~ges in Use: ~e~er a ~nfo~ng use ~ been
res~ict~ use, it s~ ~t ag~n be c~nged ~a less ~st~c~ use. A
~e w~ch s~ have been discont~u~ for a ~ri~ of ~e ye~s ~ not be ~d."
OPINION
Since the regulations above quoted from the Zoning By-Law are largely self sufficing for
the conclusion here reached, without citation of cases decided under the zoning statute
ef our Commonwealth u~der which the North Andover ~-Law ~as established~ the conclusion
is first given here w~th such mention ef opinior~ of %he courts as ~ be fitting in
light of the fact %hat the by-law itse]_f seems somewhat self-explanatorye
It is concluded that ~ 9LO The non-conforming use enjoyed by Mr. Gaudette dur~a8 his
l~fe after the adoption of the Zoning ~-Law can be continued by his suceesser ~ owner-
ship; (2) the resupmtion ef the non-couform~ug use mast occur within three years ef
March 18, 1~53; (3) the non-conform~ use mast not be extented beyond its use in the
past A~ the building ,t~y not be reconstructed (beyond repairing the portion cf the
building hitherto used as a store and adapting such portion of the building for the
continued use as a retail store); (4) the continued use as a retail store in the
portion of the building referred to in (3) is proper, the retail business done does
n~t have to he a grocery business er other re+~ail business descriped on page 1 ef this
opinion so long as it is a retail business that is not a nuisance, not a greater fire
bayard than the business formerly conducted as a non-conforming use and Mt such a
business as is unlawful for other reasons not prescribed by the Zoning ~-Law itself.
The law applicable to the problem here presented is not in any ins+_~_nce concerned with
the precise facts or manifestly similar f acts. A search of the authorities in Massa-
chusetts and other Jurisdictions shews this to be so; but a serach of those authorities
shows that the result here reached is consistent wi~h the results reached by the co~te
in construing similar zoning statutes to that passed by the Mass. Legislature where by-laws
ef somewhat sim~r wording were involved. (See Mass. Gen. Laws, Chapter 40, sections 25 and
26). In other Jurisdictions that Massachusetts a conclusion such as here presented would
.a~.ways be .upheld. on the same or s~?~ar facts and the cases, g.o~g~ beyond, this in favoring
the owner ~o e~ensions of uses no~ here permitted seem ur~us~i~med mn ~ne face of the
specific wording ~f the North Andover By-Law prohibiting extensions of uses (Article V-
section l(a), se~ forth in full above. Massachusetts. cases consistent with the com-
clusion here presented, either in general language clear]~ indicating the viewpoint o£
the court or 'in more specific application of the law to facts somewhat akin to the
problem here, would include the following.. La~ontagne V.£ennedy, 2B8 Mass. 363 N.E.
9; Marblehead v. Rosenthal, 316 Mass.124,55 N.E. (2d) 13; Oechran v. Roemer~ 287
Mas.s, 500 192 N.E. 58; Building Com-~ssionsr v. McGrath, 312 Mass. 461, 45 N.E. (2d)
265, Billerica v. Quinn, 329 Mass, 687,71 N.E. (2d) 2~5; Inspector of BUildings v.
Murphy, 320 Mass, 207, 68 N.E. (2d) 9lB.
Respectfully submitted~
A. 5/2B/ 3.
M~tion was made and seconded and it was voted to adjourn the meeting at 9i30 P.M.
~/ / Olerk /
June 15, 1953
Meeting was called te order by the Chairman at 7.'00 P.M. in the Town Building.
Members present~ Richard G. ~kipple, Chairman, Andre~ E. Alvin% Secretary,
Henry E. Lund, Edwin Reimhold and Peter Ritchie.
The matter ef the application from Dr. Joseph A. Maker was discussed and a ruction
was made and seconded and it was voted to grant the non-conforming use pe~-mlt to
Dr. Maker.
The application for the renewal of a non-conforming use permit by Fred Aziz which
was presented to the Board at a previous meeting and which had beea held up fer
further discussion was again discussed.
Motion was made and seconded and it was VOTED unanimously to grant the permit
to Mr, Asiz for anst~r year,
Motion was made and seconded and it was VOTED ~e adjourn at 8:30 P.M.
Signed ~~ Sec.
Signed ~~f/~j~ Clerk