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Home My WebLink AboutSHIPP, PETER r--- TOWN OF NORTH ANDOVER MASSACHUSETTS 's PLANNING BOARD APPLICATION FOR SPECIAL PERMIT NOTICE: This application must be typewritten Applicant PETER T. SLIPP, TRUSTEE Address 316 Essex Street , Lawrence , Mass. 840 1. Application. is hereby made (a) For a Special Permit under Section,7,30,/ , Paragraph of the Zoning By-Law. 2. (a) Premises affected are landg known as Lots 56, 58, 59 and a portion of 60 __[3jjt x�K xxx]Caaseh It paaa"U Street. (b) Premises affected are property with frontage on the North South East.,,_ West X side of Pleasant Street, and known as No, Street. (c) Premises affected are in Zoning District R-1 , and the premises affected have an area of 45 , 477 s .f . and frontage of 270. 74 feet. 3. Ownership: (a) Name and address of owner (if joint ownership, girve all names): Peter T. Slipp, Trustee Date of purchase Nov. 15, 1984 Previous Owner _ Andover Savings Bank (b) If applicant is not •owner, check his interest in the prominens Prospective purchaser Lessee Not Applicable Other (explain) 4• Size of proposed building: 58' front; 24 feet deep Heights two o tories; feet. Construction would begin immediately after (a) Approximate date of erection :,„- 1=, permit (b) Occupancy or use (of each floor) A single familf;•residential dwelling (o) Type_of construction Wood frame 5. Size of.Ezisting Buildings NSA feet front; feet deep Height: stories feet. (a) Approximate date of erection (b) Occupancy or use (of each floor) 14h (o) Type of constniotion r 6. Has there been a previous application for a Special Permit from the Planning Board on these premises? No If so, when 7.:. Description of purpose for which Speoial Permit is sought on this petitions An access route from Pleasant Street to the proposed dwelling must , by necessity, pass through the "no construction zone" stated in Section 4 . 133 of the Town Zoning By-Laws . The applicant proposes an access route. which would utilize a portion of an existing driveway within the "no topAtruction" zone , thereby eliminating new driveway construction -_ within the "zone" . (over) $. Deed recorded in the Registry of Deeds in Book Page or Land Court Certificate No. 9570Book666 Page 285 9. The principal points upon which I base my application are as follows: (must be stated in detail) The utilization of any other access route would result in construction within the "no construction zone" stated within Section 4. 133 of the Zoning By-Law. The proposed access route would make use of an exist- ing driveway, a portion of which lies within the 250' zone . Only two homes would be serviced by the common drive , and each drive would be conspicuously marked for identification. A fire hydrant , if necessary, would be installed along the proposed driveway. .I agree to pay for advertising in newspaper and postage fee for mailing legal notices to "Parties in interest", (Petitioner's signature) PeterT Stipp, Trustee Every application for action by the Board shall be made on a. form approved by the Board, These forms shall be furnished by the Clerk upon reque«t. Any communioation purporting to be an application shall be treated as mere notice of intention to.seek relief until such time as it is made on the official application form. All information called for by the form shall be ftunished by the applicant in the manner therein prescribed. Every application shall be submitted with a list of "Parties in Interest"which shall include the petitioner, abutters, owners of land direotly opposito on any public or private street or way and abutters to the abutters within three hundred (300) feet of the property line all as they appear on the most recent applicable tax list, notwith- standing that the land of any such owner is located in another city or town, the Plan- ning Board of-the town and the planning board of every abutting; city or town. - - LIST OF PARTIES IN INTEREST NAME ADDRESS 1 . John B. & Eliz W. Harriman 102 Fox Hill Road 2 . Rose M. DeFusco 112 Fox Hill Road 3 . Charles and Carol Della-Groge 202 Great Pond Road 4 . John T. and Andrea S. Hart ' 94 Fox Hill Road 5 . Lawrence A. and Lois W. Ward 84 Fox Hill Road 6 . Ronald and Lillian Levesque 74 Fox Hill Road 7. . William and Eiko Turner 64 Fox Hill Road 8. Merton and Phoebe Ann Lindquist 48 Fox Hill Road 9. Gerald A. and Pauline F. Hrenchir 561 Pleasant Street 10: Lawrence R. & Deborah J . Michaud 535 Pleasant Street 11 . Youn Chung& Suk Kyune Choi 20 Fox Hill Road , 12 . William A. & Carolyn .J . Sullivan 32 Fox Hill Road 13 . Mass . Electric Co . 11 c/o Fenton W. Varney, Vice Pres . 1101 Turnpike Street 14 . Bear Hill Aevelopment , Inc .: 910 Boston Post : Marlborough, Mass . 01782 15 . Walter V. and Mary Ann Obanlian 55 Arlington Street 1. Methuen, Mass . 01844 16 . Bruce O. and Carol J. Davis` 89 Fox Hill Road 17. T & J Realty Trust 36 Chestnut Street 18. HSH Realty Trust Leslie D. Sheppard, Trustee 110 Great Pond Road ADD ADDITIONAL SHEETS, IF tTI ESSARY. m MUM HIN TOWN OF NORTH ANDOVER MASSACHUSETTS P NOTICE OF DECISION Date. December 23:, 1987.. . . . . Date of Hearing ,December, 17 : .1987 Petition of . . . . . . . . . . . . . . . . . . . . . . Premises ,affected . . . Si.41@. of ,P�easant; Street, Lots 56 t58,;59 c ,portion of 60. Referring to the above petition for a sppecial permit from the requirements M.6.L. Chapter 40A, Section 16 of the .Nwxth. A�dpy .$A}�i,r}g.Bylaw , Section 1Q; 8, Repetive, Petition „ so as to permit Fppprl*ideX4*ipA .4f:any ,specific,and,;naterial ,chancges, . .iri. jcandit.;,ans. whtgti..the,previgVp. ,qinfavorable ,action was, based., , , After a public hearing given on the above date, the Planning Board voted to a.P.QgPt. . . . . . . . .the „Withdray*al, without ,pre j ndice , , , , , , , , , , , , ,, , , based upon the following conditions: �I cc: Director of Public Works Board of Public Works Signed Highway Surveyor Tree Warden, P.3L11.A.•. .FIedS.txQII►.. �',h3ix .r3 . Building NACC Board of Health .Jgl}n, �Simons�,,Clerk, , , , , , , , Assessors • ' • Police Chief Erich Nitzsche Fire Chief Applicant Engineer _ . . . . .. . . File iSlanttii�g Board Interested Parties .J gorrrp \ 6\ a�ZOV00 �[ !'!'.C7 i ._,,, Df•s�•o,•qNU .�r'� i,a. r7 C+p r TO1 NOR AUG l 8 AM 8 ,r ,1 o 1 \.\\zG\s 1c 42 °•... .�, a� �SSACHUsti� \r G\eC� TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS Petition: #83-88 Peter T. Slipp, Trustee * DECISION 316 Essex St. Lawrence, MA 01840 The Board of Appeals held a public hearing on August 11,1987 on the application of Peter T. Slipp, Trustee requesting a variance from the requirements of Section 4, Paragraph 4.133 3(d) and 4 of the zoning bylaws so as to permit relief so a portion of the driveway to residence be allow to exist within 250' Watershed District "No Construction Zone". The following members were present and voting: Frank Serio, Jr., Chairman, Augustine Nickerson, Clerk, William Sullivan, Raymond Vivenzio and Anna O'Connor. The hearing was advertised in the North Andover Citizen on July 23 and July 30, 1987 and all abutters were notified by regular mail. Attorney Charles Perrault spoke for the petition and requested that the Board allow the petitioner to withdraw without prejudice. Upon a motion made by Mr. Sullivan and seconded by Mr. Vivenzio to allow the applicant to WITHDRAW WITHOUT PREJUDICE. The vote was unanimous. Dated this 21st day of August, 1987 BOARD OF APPEAL Fr9X Sero Jr. Chairman /awt NG„ �•.,•taas•: ' �a1 Sha11 a{teC thee apps �ByS N°tlG AUG �ti �1th�r l{Ol„� °{ 0%s NORTH ANDOVER nate °{ (%{Ce °{ ACHIJSE'ITS kt x the C1e�K' BOARD OF APPEALS NOTICE OF DECISION Peter T. Slipp, Trustee Date . . . . . August, 21, 1987. 316 Essex Street Lawrence, MA 01840 Fetation No.. . .837?A , , , , . , , , Date of Hag,August.lh, 1987 Petition of . . . Peter T. SIAPP,. Trustee.. . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . Premises affected Lots 56, 58 59 and,Part ,of 60, - Pleasant,Street, , , , , , , , , , , , , , , , , , Referring to the above petition for a variation from the requirements ofd $eC;taoTI. 4.,. . . . . . Paragraph 4.133 3(d) and 4 of the Zoning ByLaws so as to permit relief, of. Abe.Wamrshed.District, "No. Construction .Z(?ne . . . . . ..a. . After a public hearing given on the above date, the Board of Appeals voted to ALLOW. . . : . . : the . petitioner.to. withdraw. without. . . . . . Ax .prejudice XXPrII[MtXtb{X. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The vote was unanimous. Signed Frank,Serio,,, Jr. ,Chairman. . . . . . . . . Willies?.Sulliv&o. . . . . . . . . . . . . . . . . 1�aymon�1.Vi!senio . . . . . . . . . . . . . . . . Anna .O'.Connox . . . .. . . . . . . . . . :. . . . Board of Appeals V ` Received :by Town Clerk: eR TOWN OF NORTH ANDOVER, MASSACHUSETTS T{i µwcoBOARD OF APPEALS �.-.err ft dldltION FOR RELIEF FROM THE REQUIREMENTS OF THE ZONING ORDINANCE n Applicant Peter T. SI>� Trustee – Address 316 Essex St. , Lawrence, INA 01840 1. Application is hereby made: a ) For a variance from the requirements 'of Section 4.133 Paragraphs 3(d) and 4 and Table of the Zoning By Laws . b) For a Special Permit under Section of the Zoning By Laws . –Paragraph— c ) As a Party Aggrieved, for review of a decision made by the Building Inspector or other authority. known as lots 2 . a ) Premises affected are .land X -and buildings ) Yh' WW& 56 , 58 and 59 and a portion of Lot 6�'Freasant Street . , b) Plremises affected are property with frontage on - the North ( X) South ( ) East ( ) West ( ) side of,. Pleasant • Street and known as ACX Lots 56; 58 and 59 wld a portion of Lot 60/ reet . c ) Rremises affected are in Zoning DistrictR-2 _, and the premises affected have an area of 43,560 square feet and frontage of 270.74 —feet . ------- 3. ownership a ) Name and address of owner ( if joint- ownership, give all names ): Peter m_ Slipp_,`Trustee of Pleasant Times Realty Trust Date of Purchase November 15, .284 —Previous Owner Andover-Savings Bank b) If applicant is not owner , check his/her interest in the premises : Prospective Purchaser Lesee Other (explain) 4a Size of proposed building:' 50' front; 25' feet deep; " _Height 2 stories; 35 feet . construction would begin immediately a ) Approximate date of erection: after Board approval b) Occupancy or use of each floor : one (1 ) single family residence c ) Type of construction: Wood Frame 5 . Size of existing building: NN/A_ feet front feet deep; Height stories ; fce't . a ) Approximate date of erection b) Occupancy or use of each floor :----- c ) Type of construction: _--_----- _ 6. Has there been a previous appeal , under zoning, on these premises? Yes y If so, when? June 10. 1985 7; ' Description of relief sought on this petition td•enable the prospective home bwkol access to his residence, a portion of the driveway servicing the home would, by necessity., •. ` exist within 250' Watershed District "No Constuction-Zone'•%stated in Section 4.13? of. the' " owT"wn—f3y`Zaw.. --- ----- S. Deed recorded in the Registry of Deeds iin' Book '; Page Land Court Certificate No. 9570 Book 66 Page'' • The principal points upon which I base my application are as follows: (must be stated in detail ) See Attached Exhibit "A" I agree to pay the filing fee, advertising in newspaper, and incidental expenses* , . Peter T. Slipp, Trusteo-�/ Tsignature of Petiti4 erg ,• Every application for action by the Board shall be made on a form approved by the Board . These forms shall be furnished by the Clerk upon request . Any communication purporting to be an application shall be treated as mere notice of intention to seek relief until such timeeas it is .made on the, % official application form. All information 'called for by the form shall' ' be furnished by the applicant in the manner ' �herein,:prescribed . Every application shall be submitted with a list of '•"Parties In Interest which list shall include .the petitioner , , abutters , owners of land directly . opposite on any public . or private street or way, and abutters to .the abutters ,within ' three hundred feet ( 300 '. ) of the property. line of the ' petitioner as they appear , on the most . recent applicable tax list, notwithstanding that the land of any such owner is located in another city or town,, the Planning Board of the city or town,. and the Planning Board of every abutting city or town . *Every application shall be submitted with an application charge cost in the amount of $25 . 00. In addition, the petitioner shall be responsible ''. '•'' ' •for any and all costs involved in bringing the petition before the Board. , Suc}iycosts shall include mailing and publication, but are not necessarilY limited to these . : Every application shall be submitted with a plan of land approved by the Board . No petition will be brought before the Board unless said plan has been submitted . Copies of the Board ' s requirements regarding plans are attached hereto or ' are available from the Board of Appeals upon request . LIST OF PARTIES IN INTEREST Name Address 1 John B. & Eliz. W. Harriman 102 Fox Tull Road 2. Rose M. DeFusco 112 Fox Hill Road 3.; Charles & Carol Della-Groge 202• Great Pond Road -4. -' John T. & Andrea S. Hart 94 Fox HillRoad �. Lawrence A. & Lois W. Ward 811 Fox Hill Road �• 6. Ronald & Lillian Levesque 74 Fox. Bill Road 7. William'& Eiko Turner 64 Fox Hill Road 8.. Merton & Phoebe Ann Lindquist 48 Fox Hill Road + ,9. Gerald A. & Pauline F. Hrenchir 561 Pleasant Street rr i'110. Lawrence R. & Deborah J.' MIchaud 535 Pleasant Street Youn'Chung & Suk Kyune Choi ZO roc Hill Road 12. William A. & Carolyn J. Sullivan . 3.2 Fox Hill Road 13• Mass . Electric Co. il c/o Fenton W. Varney, Vice President -1101 Turnpike Street •14. Bear Hill Development, INc. 910 Boston Post " Marlborough, MA 01782 15. Walter V. & Mary Ann Ghanian 55 Arlington Street. Methuen, MA 01844 : 5 16. Bruce 0. & Carol J. Davis 89 Fox Hill Road (use additional sheets if `necessary) 17. T. & 1. Realty Trust 364 Chestnut Street 18. },SH:p6alth Trust 170 Great Pond Road Leslie D. Sheppard, Trustee r4 l� - EXHIBIT A MEMORANDUM OF LAW TO: The Town of North Andover Board of Appeals FROM: Charles F. Perrault, Esquire FITZGIBBONS, SLIPP & HOMSEY 316 Essex Street Lawrence, MA 01840 RE: Application For Relief of Peter T. Slipp, Trustee HEARING DATE: August 11, 1987 FACTS The subject parcel (hereinafter referred to as "Lot 5911) is comprised of lots 56, 58, 59 and a _portion of lot 60 as those lots are described in certificate of title number 9570 recorded at Book 66, Page 285 at the North Essex Registry of Deeds. Between January 1, 1985 and February 11, 1985, James J. Curran, III, President of Cyr Engineering Services, Inc. met on numerous occasions with Charles H. Foster, building inspector for the Town of North Andover. The lot in question and two adjacent lots on Pleasant Street were the topic of discussion. Mr. Curran was repeatedly told by Mr. Foster that the three proposed dwellings were required to be built without a distance of two hundred feet (2001 ) from the annual mean high water mark of Lake Cochickewick. On February 11, 1987, the then final site plans - reflecting the two hundred (200) foot setback stated by Mr. Foster - were presented to Mr. Foster in the presence of Mr. Philip J. DiGloria, Jr. , principal of Pleasant Times Realty, Mr. Alexander J. Zadeh, the builder, Attorney Peter T. Slipp, Trustee of Pleasant Times Realty Trust, and Attorney Timothy Hatch, counsel for Andover Savings Bank, predecessor in title to the parcel in question. The two hundred (200) foot setback was discussed openly by all parties. After Mr. Poster' s review of the plans and a brief discussion, Mr. Foster voiced his approval of the site plans. He stated that the building permits would be issued on the basis of those plans. The building permits were, in fact, issued shortly thereafter. Almost immediately, construction began on the Pleasant Street site, including that on Lot 59. A foundation on that lot was constructed and framing was to begin when, by correspondence dated May 10, 1985, Charles H. Poster issued a letter to Pleasant Times Realty Trust purporting to revoke the building permit respecting the subject lot. The reason for his action, Mr. Foster stated, was that the construction of the home on lot 59 was to be within the two hundred fifty (250-) foot setback from Lake Cochickewick. Also for reasons relating to the setback, Charles Foster purported to revoke the building permit issued on adjacent Lot 10-60 by letter of June 13, 1985. Only the driveway servicing the Lot 10-60 single family home was proposed within the watershed district. Litigation ensued and a short time later, construction on the lots terminated. On behalf of the principals of Pleasant Times Realty Trust, Cyr Engineering Services, Inc. requested variances regarding Lot 59 and Lot 10-60. The variance request respecting lot 10-60 was granted despite the fact that the driveway to service it would be constructed within the setback. The variance request as to lot 2 59 was denied due, among other factors, to the proposed construction of the lot 59 single family home within the "No Construction Zone". The Board ordered that Lot 59 be returned to the condition in which it existed prior to construction. This decision was received by the Town Clerk on July 19, 1985, over two years ago. The Lot 59 proposal before you differs from that which was rejected by the Planning Board in July, 1985 in two respects: 1. the proposed single family dwelling would now be located at a point outside the two hundred fifty ( 250) foot "No Construction Zone", whereas previously!, its proposed location was within that zone; and 2. the boundaries of Lot 59 have been redrawn to accommodate the proposed dwelling at its new situs, thereby increasing the size of the lot. I LAW I In 1985, it was proposed through Article 14 of the Water District Preservation Articles that an allowed deviation from the provisions of Section 4.133 of the By Laws be obtained only through a variance, not, as before, a special permit. This proposal was adopted, thereby vesting the Board of Appeals with sole authority with respect to such rulings. In its present form that Section reads as follows: "No construction shall occur two hundred fifty (250) feet horizontally from the annual mean high water mark of Lake Cochickewick and one hundred (100) feet horizontally from the edge of all tributaries, except by special permit." A fourth paragraph was also added to section 4.133 at the time of the above change. Essentially, it proclaimed a Moratorium on 3 construction of any kind within the watershed district, unless the Board of Appeals granted a use variance allowing the same. Section 10. 4 of the By Law, governing the grant of variances, appears to be modeled after Massachusetts General Laws Chapter 40A, Section 10. That Section states that a variance may be granted where, "owing to circumstances relating to soil conditions, shape or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in general, a literal enforcement of the provisions of this By Law will involve substantial hardship, financial or otherwise to the petitioner or applicant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this By Law." ARGUMENT The proposed development satisfies all of the dimensional requirements of Section Seven (7) of the Town By Law. Nevertheless, the applicant is in need of access from Pleasant Street to the proposed single family home. By necessity any such access route must pass within the two hundred fifty (250) foot no construction zone established by Sections 4.133(3) (d) and (4) of the By Law. The single family dwelling itself, however, will be constructed completely outside of the "zone". This represents a significant change from the proposal presented to the Board on June 10, 1985 wherein the home was proposed within the "zone". The subject parcel is affected by circumstances relating to soil conditions, shape or topography which do not affect generally the zoning district in general. Nearly no other lot in the vicinity of the locus faces the logistical problem of the lot 4 in question. Because of the shape of the parcel, construction of the driveway within the zone is necessary. In Lapenas & another v. Zoning Board of Appeals of Brockton, 352 Mass. 530, (1967) , the Plaintiff sought business access across a residential strip of land abutting his business. The only access to the Plaintiff's business was across this strip of land. Citing "the imperative need of access to abutting land" Id at 533, the Court stated that "the condition especially affecting the [Plaintiff's] land does not affect generally the other land in the Zoning district. . ." Id at 532. According to the Supreme Judicial Court of Massachusetts, "the granting of the variance in the circumstances involves an exercise of discretion by the board only to the extent of electing to record the board's recognition of the legal rights of access." Id A literal enforcement of the provisions of this By Law will involve substantial hardship, financial or otherwise. After the issuance of the building permit by the Town of North Andover, construction on the site naturally began, only to be halted by the latar revocation of the permit. Subsequent to that time, the Board of Appeals ordered the razing of the foundation which had been constructed. Costs incurred in the general site construction and later razing of the foundation alone resulted in a loss to the principals of $16,239.82. This, however, is minimal financial loss when compared with the more than $102,G7G.i• (as of July 16, 1587) indebtedness incurred by the principals of Pleasant Times Realty Trust as the result of delayed construction. As it has since early 1985, interest 5 accrues daily on an outstanding construction mortgage encumbering Lot 59. Therefore, it is clear that the principals have sustained a financial loss, directly related to Lot 59, of close to $120,000.00. of equal import respecting the issue of hardship would be the effect of the denial of this variance request. The construction of a single family dwelling on this R-2 parcel is not possible without access. In fact, a. denial of access will render this parcel incapable of being developed, and will be tantamount to the exercise of the power of eminent domain by the Town of North Andover. Recently, in the case of First English Evangelical Lutheran Church of Glendale, Appellant vs. County of Los Angeles, California 55 LW 4782 (hereinafter, First English nva�ngelical) , the United States Supreme Court stated that ". .,.where the government's activities have. . . worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective." The facts in this case involved the enactment of an ordinance closely paralleling the Town of North Andover setback requirement. The ordinance in First English Evangelical provided that: "a person shall not construct, reconstruct, place or enlarge any building or structure, any portion of which is, or will be, located within the outer boundary lines of the interior flood protection area located in Mill Creek Canyon. . ." Id at 4782. 6 In the present case, the proposed single family dwelling would be constructed outside of " the two hundred fifty (250) foot no construction" zone. The lot is presently buildable in all respects except one. A variance for mere access is needed because the driveway to serve the home passes, at its most proximate point, two hundred eleven (211) feet from the mean high water mark of Lake Cochickewick. The driveway would be constructed of materials which would nearly negate the flow of water upon and from it so as to ensure a de minimus ecological impact. The denial of a variance based upon these facts would constitute a taking by the Town of North Andover as the applicant would be denied all use of its property. "It is the owner' s loss not the taker's gain which is the measure of the value of the property taken." United States v. Cansby 328 U.S. , at 261 Desirable relief may be granted without substantial detriment to the public good and without nullifying or sub6tantially derogating from the intent or purpose of this By Law. The applicant is seeking access to a proposed single family home. Such a dwelling is a permitted use within the R-2 district in which it will be located. The impact of the grant on traffic conditions in the area would be minimal. Due to the relatively isolated location of the home after completion, it's habitation would impact minimally on the privacy of abutters. Moreover, the proposed home will be connected to the Town Sewer System, an ecological plus. 7 Environmental concerns are, of course, appropriate. However, the fact remains that the home itself will be built outside of the watershed district and the driveway, although within the district, will be constructed in such away as to ensure a de minimus impact upon Lake Cochickewick. "Some derogation from the by-laws purpose is antici- pated by every variance. Otherwise, the denial of the relief on the basis of a slight or insubstantial departure from the goals of the by-law would prohibit the grant of any variance, and would. . . approach confiscation by depriving a property owner of all reasonable use of his property." 3 RathKopf, Zoning and Planning, Section 38.06 at 38-4 n. 12. CONCLUSION The dwelling to be constructed on Lot 59 would not lie within the "no construction zone". The only construction within the zone would be a portion of a driveway which would service the dwelling. This drive would be constructed so as to minimize its proximity to and impact on Lake Cochickewick. The grant of the use variance would allow the applicant access to the proposed home and consequently, the receipt of fair market value resulting from the reasonable use of the parcel. This would aid in ameliorating the nearly $120,000.00 loss the principals have sustained to date. Charles F. P r au t, Esquire FITZGIBBONS, SLIPP & HOMSEY 316 Essex Street Lawrence, MA 01840 (617) 681-0666 Dated: 8