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Home My WebLink AboutKORT, JOSEPH REG i''+=D QA=41 :1LGH' DONALD F. SMITH NOR' ri •+ L'''1'ER ATTORNEY AT LAW JUL i8 2 56 1 i'RUTTON STREET TEL. OFFICE 686.0142 NORTH ANDOVER, MASSACHUSETTS TEL. HOME 683.1839 01"5 July 18, 1983 Mr. Daniel Long, Town Clerk, Town of North Andover' Town Building Main Street North Andover, MA 01845 In re: Claim of Appeal from Decision of Board of Appeals Dear Sir: This is to advise that on July 15, 1983, Joseph P. Kort has filed an appeal with the Essex Superior Court from a decision of the Board of Appeals of the Town of North Andover dated June 27, 1983, and filed with you as Town Clerk on June 28, 1983, which decision granted a variance from the re- quirements of the Zoning By-Laws of said Town to William S. Hmurciak with respect to premises being numbered 14 Cotuit Street, North Andover. Enclosed herewith is a copy of the Complaint of Joseph P. Kort vs. the members of the Board of Appelas and said William S/ Hnurciak entered in Essex Superior Court on July 15, 1983 and being numbered Civil Action 83-1677 on the Docket of said Court. Very truly yours, JOSEPH P. KORT JJ DD By �7 'lrlCi Donald F. Smith, rHis Atteruey i COMMONWEALTH OF MASSACHUSETTS Essex, ss. TRIAL COURT SUPERIOR COURT DEPT. CIVIL ACTION NO. 83—/677 JOSEPH P. KORT, ) ' Plaintiff ) V. ) FRANK SERIO, JR. ) ALFRED E. FRIZELLE ) COMPLAINT WILLIAM J. SULLIVAN ) AUGUSTINE W. NICKERSON ) MAURICE S. FOULDS ) WILLIAM S. HMURCIAK, ) .Defendants ) 1. The Plaintiff, Joseph P. Kort, resides at 14 Brewster Street, North Andover, Essex County, Massachusetts 01845, and is a person aggrieved within the meaning of Mass. G.L. Chap, 40-A, Sec. 17 by the decision of the Board of Appeals of the Town of North Andover dated June 27, 1983, granting a variance from. the requirements of the Zoning By Laws of said Town, Section 7, Paragraph 7.1 7.3jand Table 2s so as ,to permit the continued use of a dwelling at 14 Cotuit Street, in said North Andover which will not meet the area or rear setback requirements and allow the construction of a single family dwelling on a lot which will not meet the area requirements. 2. The defendants, Frank Serio Jr. , Alfred E. Frizelle, William J. Sullivan, Augustine W. Nickerson, and Maurice S. Foulds, are duly constituted members of the Board of Appeals of said Town of North Andover and reside in said Town of North .Andover, as follows: Frank Serio, Jr. 250 Hillside Road North Andover, Massachusetts- 01845 Alfred E. Frizelle 131 Appleton Street North Andover, Massachusetts 01845 William J. Sullivan 405 Salem Street North Andover, Massachusetts 01845 -2- Augustine W. Nickerson 100 Moody Street North Andover, Massachusetts 01845 Maurice S. Foulds 40 Wentworth Avenue North Andover, Massachusetts 01845 3. The defendant, William S. Hmurciak, resides at 14 Cotuit Street, North Andover, Massachusetts 01845. 4. Prior to June 14, 1983, the said William S. Hmurciak filed with said Board of Appeals an Application for a variance from the requirements of Section 7, Paragraphs 7.1, 7.3 and Table 2 of the Zoning By-Laws of the Town of North Andover, setting forth therein that he, the said William S. Hmurciak, was the owner of premises at 14 Cotuit Street, in said North Andover, in an R-4 Zoning District, having an area .of 19,000 square feet and frontage of 100 feet, and alleged therein that the said property would be divided into two lots with less than the required area, and the existing, building to have less than the minimum ' rear set back. 5. The Application for variance was properly advertized and Notice of Hearing mailed to all abutters; and, pursuant to such Notice, a hearing on the Application was held on June 14, 1983 at the Town Building, Main Street, in said North Andover. 6. In a decision dated June 27, 1983 and filed with the Town Clerk on June 28,1983, the Board of Appeals, by a vote of four in favor and one opposed, granted the variance as requested setting forth the following reasons therefor: "The Board finds that Section 10.4 of; the Zoning By-Law has been satisfied. In particular, the Board finds that a literal enforcement of the provisions of the Zoning By-Law would involve a hardship to the petitioner and that desir- able relief can be granted without detriment to the public good and without nullifying or substantially derogating from the intent and purpose of the Zoning By-Law". 7. The Plaintiff says that the decision of the Board of Appeals fails to. set forth any reasons for granting of the variance other than a simple recitation of the statutory requirements for granting of a variance. 8. The Plaintiff further says that the decision of the Board of Appeals fails to set forth any finding that failure to grant the relief sought by the defendant, William S. Hmurciak, would result in hardship, financial or otherwise, to William S. ,H;urciak. 9. The Plaintiff further says that defendant, William S. Hmurciak, set ,forth in his Application for Variance, that relief from the provisions of the Zoning By- Laws by variance was sought for the financial benefit of a son of the applicant and the said decision of the Board of Appeals recites evidence that the proposed subdivision of .land of the defendant, William S. Hmurciak, was for purposes of allowing the son of the applicant to construct a single family dwelling. -3- 10. The Plaintiff further says that the decision of the Board of Appeals fails to set forth any finding of circumstances affecting land of the defendant, William S. Hmurciak, and not affecting generally other land in the same zoning district which warranted the granting of the variance. 11. The Petitioner further says; Zoning By-Laws of the Town of North Andover require in R-4 Districts a Minimum area requirement of 12,500 square feet, frontage of a minimum of 100 feet, side line set back of 15 feet, and rear lot line set backs of 30 feet, and that the premises of the defendant, William S. Hmurciak, at the time of filing of his Application for Variance, met all requirements of the Zoning By-Laws. 12, The Petitioner further says that the granting of the variance by the Board of Appeals results in the creation of two parcels ,or lots by subdivision each of 9,500 square feet and one of which fails to meet the,rear lot line set back requirements, in derogation of the intent and purpose of the Zoning By-Laws. 13. The Petitioner further says that the granting of a variance by the defendant members of the Board of Appeals is therefore in excess of the powers granted to the said Board of Appeals by G.L. Chap. 40-A and constitutes a nullity. , WHEREFORE the Plaintiff seeks: 1. That the Decision of the defendant members of the Board of Appeals of the Town of North Andover granting aivariance from the provisions of the Zoning By-Laws of the Town of North Andover be annulled. 2. Such other and further relief as to this Court may seem just and proper under the circumstances. r� JOSEPH P. KORT. , Donald F. Smith, his Attorney 200 Sutton Street North Andover, MA 01845 Tel. 686-0142 . A NoarH r ;�`••` ''•;rti 'any aPPeal shall be filea ,a . 9. within (20) days after thi �; �.,,•>� �, date I,v ER �: 1$Ss :• in of filing of this Notic, „� the Office of the Towr JUN 09 �aWN VVW Clerk, OF NORTH ANDOVER _ MASSACHUSETTS BOARD OF APPEALS NOTICE OF DECISION Date. . . . June, 27',. 1983 Petition Date of Hearing.. Jun e . .4. . 19$3 Petition of . . . . . S. HMURCIAK Premises affected . .14. .Co.tuit Street Referring to the above petition for a variation from the requirements of the : .toning By Law so as to permit . reli.ef. from, the. area. and. .setback, xegu�rements„tR a�1Qw, continued use of a dwelling which withe rq. ll not meet the area or rear setback euirements. . & .allow .the. cons.tructa;on. of. .a. Aingle. a.Mill .dWei.], ]p.g on a lot which will not meet the area requirements. After a public hearing given on the above date, the Board of Appeals voted to . . .Grant. . . the . . . . .var.iance. . . . . . . . . . . . . . . . . . . . and hereby authorize the Building Inspector to issue a permit to . . . .William. S. . Fimurciak. .. . . . . Signed Frank, Serio, Jr.. ,, ;Chairman Alfred .9...;Fr.iZe.1leR . Esq, x Vice Chairman ATT$8Ti . . . . . . . . . . William. J.,.. Sullivan. . . . . . . . . . . . . . . . , Copy Augustine .W_. .Nicke.rsQr:. . . . . . . . . . . Maurice. S. . Foul.ds. . . .; . . . . . . . . . Town Clerk Board of Appeals c Any appeal shall be filed „o�T„ within (20) days after the _ ', ;t !'t�•`e �'yOg date of filing of this Notice in the Office of the Town Clerk. TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS June 27, 1983 Mr. Daniel Long, TownClerkWilliam S. Hmurciak Town Office Building 14 Cotuit Street North Andover, Mass. Petition No. 34-183 Dear Cdr. Long; The Board of Appeals held a public hearing on Tuesday evening, June 141 1983 upon the application of William S. Hmurciak . The hearing was advertised in the North Andover Citizen on May 26 and June 2 , 1983 and all abutters were notified by regular mail. The following members were present and voting: Frank Serio, Jr. , Chairman; Alfred E. Frizelle, Esq., Vice Chairman; William J. Sullivan; Augustine W. Nickerson; and Maurice S. Foulds. The petitioner seeks a variance from the provisions of Section 7, Paragraphs 7. 1, 7. 3, and Table 2 of the Zoning By Law so as to permit relief from the area ;and setback requirements to allow the continued use of a dwelling which will not meet the area or rear setback requirements and to allow the construction of a single family dwelling on a lot which will not meet 'the area requirements on premises located at 14 'Cotuit Street. The petitioner testified through his son, William S. Hmurciak, Jr. , that he proposes to subdivide his parcel to allow his son to construct a single family dwelling. The petitioner' s existing dwelling, which fronts on Cotuit Street, would consist of 9,500 square feet and would not meet the area or rear setback requirement and .'the`proposed dwelling, consisting of 9 ,500 square feet would front on Brewster Street hnd would not meet the area requirements of the Zoning By Law. Lots 71, 72 , ,and 63 as shown on the plan submitted were purchased by the petitioner in 1979. Lot 62 as shown on the plan submitted was purchases recently. ATTEST: ATrue ueCopy Town Clerk William S. Hmurciak F' 14 Cotuit Street T, , Petition No. 34- 183 June 2.7, 1983 Page 2 JUN 3 C9 PM 183 Upon a motionmadeby Mr. Frizelle and seconded by Mr. Nickerson , the Board voted four to one to grant the variance as requested, with Members Serio, Frizelle , Nickerson, and Foulds voting in favor of the motion and Member Sullivan-. voting in opposition. The Board finds that Section 10. 4 of the Zoning By Law has been satisfied. In particular, the Board finds that a literal enforce- ment of the provisions of the Zoning By Law wouldinvolve a hard- ship to the petitioner and that desirable relief can be granted without detriment to the public good and without nullifying or substantially derogating from the intent and purpose of the Zoning By Law. Sincerely, BOARD OF APPEALS Frank Serio, Jr. , Chairman ]w I (Plan to follow) E 1 E q k 6 i COMMONWEALTH OF MASSACHUSETTS Essex, ss, TRIAL COURT SUPERIOR COURT DEPT. CIVIL ACTION NO. JOSEPH P. KORT, Plaintiff, Vs. FRANK SERIO, Jr. et al, Defendants COMPLAINT DONALD F:-SMITFt ATTORNEY AT!AW 200 SUTTON SL NORTH ANDOVER,MA 01845 T _ Tel. 686 0142 Any appeal shall be filed -� •a; within (20) days after the c '3• date of filing of this Notice i'• 18 in the Office of, the Town FES ••....�� "H° ,,,,Clerk. JuN 4 '83rowNR OF NORTH ANDOVER MASSACHUSETTS BOARD QF APPEALS NOTICE OF DECISION ' Date . . . . June. 2.?.. .i9A4. . . . . . Petition No.. . . .3A-1.8 3. . . . . . . . . . Date of Hearing— Jane. ,1 Q a . 19$3 Petition WILLIAM S. HMURCIAK Premises affected . .14. .Co.tuit, Street. . . . . . . . . . . . . Referring to the above petition for a variation from the requirements of the . .Zoning .By .:Paw Tab.le: .?. . : . . . . . . . . . . . . . . . . . . . . . so as to permit . reli.ef. .fron►. .the. .are4. and. setl?ack requirements. ,tp. ,a11ow the continued use of a dwelling which will not meet the area or rear setback .requirements. . & .allow. .the. construct.ion. .of. .a,s,}ngle. ,faMily .dKgl.j4pg on a lot which will not meet the area requirements. After a public hearing given on the above date, the Board of Appeals voted to . . .Grant. . : the :variance. . . . . . . . . . . . . . . . . . . . and hereby authorize the Building Inspector to imam a permit to . . . William. S. .'Hmurciak. . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . Signed Frank, Serio,,, .Jr... ,, Chairman Alfred . r. .k rizelle.F .E.eq,.,. .Vice. ,Chairman . . . . . . . . . . . . . . . . Augus ti ne. .W... .Ni.cke.rsQn. . . . . . .". . . . Maurice. S. . Foulds. . .. . . . . . . . . . . . . .. Board of Appeals Any appeal shall be filed NpRrp within (20) days after the date of filing of this Notice A in the Office of the ,Towri Clerk. TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS June 27 , 1983 Mr. Daniel Long, Town Clerk William S. Hmurciak Town Office Building', 14 Cotuit Street North Andover , glass. Petition No. 34-183 Dear Mr. Long: The Board of Appeals held a public hearing on Tuesday evening, June 14 , 1983 upon the application of William S. Hmurciak. The hearing was advertised in the North Andover Citizen on May 26 and June 2, 1983 and all abutters were notified by regular mail. Thefollowing members were present and voting: Frank Serio, Jr. , Chairman; Alfred E. Frizelle, Esq. , Vice Chairman; William J. Sullivan; Augustine W. Nickerson; and Maurice S. Foulds . The petitioner seeks' a variance from the provisions of Section 7, Paragraphs 7. 1, 7. 3 , and Table 2 of the Zoning By Law so as to permit relief from the area and setback requirements to allow the continued use of a dwelling which will not meet the area or rear setback requirements'' and to allow the construction of a single family dwelling on a' lot which will not meet the area requirements on premises located at 14 Cotuit Street. The petitioner testified through his son, William S. Hmurciak, Jr. , that he proposes to subdivide his parcel to allow his son to construct a single family dwelling. The petitioner' s existing dwelling, which fronts on Cotuit Street, would consist of 9,500 square feet and would not meet the area or rear setback requirement and the proposed dwelling, consisting of 9 ,500 square feet, would front on Brewster Street and would not meet the area requirements of the Zoning By Law. Lots 71, 72 , and 63 as shown on the plan submitted were purchased by the petitioner in 1979. Lot 62 as shown on the plan submitted was purchased recently. E':7 F 0 William S. Hmurciak DA" 1 =`3G c 1; 14 Cotuit Street F4G; "P Petition No. 34-183 June 27, 1983 Page 2 SUN 20 ( 09 PM '83 Upon a motion made by Mr. Frizelle and seconded by Mr. Nickerson, the Board voted four, to one to grant the variance as requested, with Members Serio, Frizelle , Nickerson, and Foulds voting in favor of the motion and Member Sullivan voting in opposition. The Board finds that Section 10 . 4 of the Zoning By Law has been satisfied. In particular, the Board finds that a literal enforce- ment of the provisions of the Zoning By Law would involve a hard- ship to the petitioner and that desirable relief can be granted without detriment to the public good and without nullifying or substantially derogating from the intent and purpose of the Zoning By Law. Sincerely, BOARD OF APPEALS �/ 1 Frank Serio, Jr. , Chairman Jw (Plan to follow) COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT CIVIL ACTION NO. 83-1677 JOSEPH P. KORT, Plaintiff * VS. * STIPULATION OF DISMISSAL * WITH PREJUDICE FRANK SERIO, JR. , et als. Defendant * C-) n To the Clerk of the above-referenced court: Kindly enter the following upon the docket of the above case: "Case dismissed, with prejudice and without costs." ' HILLSIDE DEVELOPMENT CORP. By its attor• s 6 ames R. Senior, Esq. CONN, AUSTIN, CONN & SENIOR 0331I Montvalee Avenue, Suite 601 Woburn, Massachusetts 01801 Telephone: (617) 938-9020 JOSEPH P. KORT By his attorney AillN,, iam L. kat"hronel, Jr. q 81 Washington Street P. 0. Box 27 Salem, Massachusetts 01970 Telephone: (617) 745-3737 FRANK SERIO, JR. et als. North Andover Board of Appeals By th 'r attorn omenic J. Xalise, Esq. 89 Main Stfeet North Andover, MA 01845 Telephoner (617) 682-4153 Dated: November � `1987 K5/KA/11.25 rn n r, COMMONWEALTH OF MASSACHUSETTS ESSEX,ss. SUPERIOR COURT CIVIL ACTION No. 83-1677 Joseph P. Kort , Plaintiff(s) c= rs, V. c-� tv Frank Serio, Jr., et als. , Defendant(s) 77: y qJ NOTICE OF WITHDRAWAL OF APPEARANCE To the Clerk of the Above Named Court: Please withdraw my appearance as attorney for Joseph P. Kort in the above entitled case. This notice is accompanied by the appearance of my successor counsel;* no motions are now pending before the court; no trial date has been set; and proof of service on my client(s) and all other parties of said withdf wal is attached hereto.* Donald F. Smith Dated August 19 87 Attomeyfor Joseph P. Kort Address: 39 Brightwood Road, North Andover, MA Tel. No. (617) 686-0142 NOTES: *Military Affidavit must accompany withdrawal if no successor counsel appears — Mass. Sup. Ct. Rule 48. "Withdrawal must be by leave of Court upon motion if all of the requirements of Mass, R. Civ. P. (Rule 11 (c)) are not met. FORM 23 C c� SUPERIOR COURT 83- 1677 JOSEPH P. KORT vs. FRANK SERIO, JR. , ET ALS 686_0142 COUNSEL FOR PLAINTIFF COUNSEL FOR DEFENDANT Donald F. Smith 200 Sutton Street, No. Andover, Mass 01845 p v 198L1ATE NO. DOCKET ENTRIES ADDITIONAL PLAINTIFFS July 15 1 Com laint (40) 2 Civil action cover sheet S. Id Dismi t. 'ors •nless the case is lit to 'tale .9f the N.R.C.r. , .__c: Lv_ - AODtT)ONAL DEFENDANTS Dec 23 9 1 Stipulation of Dismissal with prejudice and without costs. QBM Alfred E. Frizelle : William J. u Ivan: Augustine W. Nickerson: Maurice S. Foulds : William S. Hmurciak: 1 CONTRACT(OR TORT) 2 MOTOR VEHICLE TORT 3 OTHER TORTS 4 LAND TAKING �iUEf ATT ST 5 OTHERS E DERIJ V ASST. RK