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MACLOUD, WILLIAM
Of 514 EXHIBIT • n �� y Any appeal shall be filed �- co �; .. TOWN OF NORTH ANDOVER within c!t.• ^":er the =r '• MASSACHUSETTS date of fiff Of t':iS Notice in the Office of. the Town �Qo� ti BOARD OF APPEALS Clerk. 0 * * Douglas R. MacMiff *< Petition # 21-89 William S. MacLeod 1 East River Place * DECISION Methuen, MA 01844 * * * The Board of Appeals held a public hearing on Tuesday evening, October 11, 1988 upon the application of Douglas R. MacMiff and William S. MacLeod requesting a reconsideration for a Special Permit under Section 4, Paragraph 133 of the Zoning ByLaws so as to permit construction of a single family dwelling with related grading within 100' of a wetland which is a tributary to Lake, Cochichewick on the premises located at 163 Salem Street. The following members were present , and voting: William Sullivan, Acting Chairman, Augustine Nickerson, Clerk, Walter Soule, Raymond Vivenzio and Anna O'Connor. The hearing was advertised in the North Andover Citizen on September 15 and September 22, 1988 and all abutters were notified by regular mail. Upon a motion made by Mr. Vivenzio and seconded by Mr. Soule, the Board voted, unanimously, to DENY the request for reconsideration on the grounds that it is improperly before this Board. Section -3 of the Zoning Rules and Regulations reads as follows: "RECONSIDERATION: After the meeting had adjourned, there shall be no reconsideration of a decision of the Board, except upon written request of the applicant or a person aggrieved by the decision filed with the clerk not later than ten (10) days after the filing of the decision with the Town Clerk. A motion for reconsideration must be acted upon by those who participated in the hearing and decision, prior to theexpirationof the period provided for appeal to the Superior Court by General Laws, Chapter 40A, Sec. 21. A motion to _reconsider must be carried by four (4) concurring votes, and, if carried, shall have the effect of restoring the matter precisely as it Stood before the decision was voted. A motion to amend the decision or a motion to re—open the hearing will be in order." BOARD OF APPEALS William Sullivan Acting Chairman Dated this 14th day of October, 1988 /awt ' �^ tilC's Lj C7 Q r the IVo\ICi3 + y• A►IIIL t L n •' lass Tow s. t `_'i[ie:Ofr!z of tha �s,ss 4�r :� bo tic / .,gcnu��. c v v 1 ao , TOWN OF NORTH ANDOVER �,� a' ,G� kt%`y ors MASSACHUSETTS �.�I;;�r {r� v� ante° G�E�oe BOARD OF APPEALS to G NOTICE OF DECISION Douglas R. MacMiff William S. MacLeod Date . , . . , , , October 14, 1988 1 East River Place 2189 Methuen, MA 01844 Petition No.. . . .. . . . . . . . . . . . . . . . . . Date of Hearing. .QgtO r A!v . 19A8 Petition of AQuglas. R, MacMlfti . .4ud. W. 711am. S., :Maci.eod. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Premises affected . . . . .163. SaJem .Street. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Referring to the above petition for a HK � recontderai�on for a Special Permit under Section 4, Paragraph 133 of the Zoning ByLaws. so as to permit . construction .of .a. single.family. Awelling .with. related. grading. . . . . -within. X00 .ft.• of .a.wetland .which is •a. tributary. to. lake.Cochichewick . . . . . . . . . . After a public hearing given on the above date, the Board of Appeals voted to DEffY. . . . the REQUEST FOR RECONSIDERATION P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . fIft LX Signed I . . . . . .William .Sulliyan,. ,Acting Chairman . . . .Augp�tine.Nickerson,, Clerk, , . , _ . . Walter .$481e. . . . . . . . . . . . . . . . . . . . . . . .Raymond Vivenz;LQ . . . . . Anna .0.'.Connor. . .. . . . . . . . . . . . . Board of Appeals Trial Court of Massachusetts DOCKET NUMBER CIVIL ACTION COVER SHEET SUPERIOR COURT DEPARTMENTlllrm Division >> PLAINTIFF(S) DEFENOAM(S) , Douglas R. Mifflin The North Andover Zonin . Board William S. MacLeod of Appeals, acting by and througg its Mmbers: Wi 11 ian J. Sullivan W. Nice etsm Water ATTORNEY(S)FIRM NAME,ADDRESS AND TEL) ATTORNEY(S)(if knownF. Soule, Aim P. Durr, aril a-A R.,. A. David L. McLellan Vivenzio, Fsq. ��7"' Caruso & McLellan One Elm Square, Andover, MA 0181 ae.o.e. 3 840 508 475-6700 ORIGIN CODE AND TRACK DESIGNATION Place an ® in one box only: 1. F01 Complaint ❑ 4.F04 District Ct. Appeal c231, s. 97 (X) ❑ 2. F02 Removal to Sup. Ct. c231, s. 104 (F) ❑ 5. F05 Reactivated after Rescript; Relief from [13. F03 Retransfer to Sup. Ct. c231, s. 102C OC) judgmentlorder (Mass. R Civ.P. 60 (X) ❑ 6. E10 Summary process appeal (X) NATURE OF ACTION AND TRACK DESIGNATION (A) =Average _(F) = Fast (X)= Accelerated Place an ® in one box only: is this a jury case? ❑Yes No CONTRACT REAL PROPERTY MISCELLANEOUS ❑ A01 Services, labor and materials (F) ❑ C01 Land taking (eminent domain) (F) ❑ E02 Appeal from administrative ❑ A02 Goods sold and delivered (F) & CO2 Zoning appeal, G.L. c.40A (F) agency, G.L. c.30A (X) ❑ A03 Commercial Paper (F) ❑ CO3 Dispute concerning title (F) ❑ E03 Action against Commonwealth or ❑ A08 Sale or lease of real estate (F) ❑ C04 Foreclosure of mortgage (X) municipality, G.L. c.258 (A) ❑ A99 Other (specify) (F) ❑ C99 Other (specify) (F) ❑ E04 Taxpayer suit,G.L. c.40 s.53 (A) ❑ E05 Confirmation of arbitration awards, G.L. 0.251 TORT EQUITABLE REMEDIES ❑ E06 Massachusetts Antitrust Act ❑ B03 Motor vehicle negligence-personal ❑ Doi Specific performance of contract(A) G.L. c.93 (A) injury/property damage (F) ❑ D02 Reach and apply, G.L. c.214, ❑ E07 c.112, s.12S (Mary Moe) (X) ❑ B04 Other negligence - personal s.3(6)49) (F) ❑ E08 Appointment of receiver (X) injury/property damage (F) ❑ D06 Contribution or indemnification (F) ❑ E09 General contractor's surety ❑ B05 Products liability (A) ❑ D07 Imposition of trust (A) gond, G.L. c.149, §29, 29a (A) ❑ B06 Malpractice - medical (A) ❑ D08 Minority stockholder's suit (A) ❑ E11 Workman's Compensation (X) ❑ B07 Malpractice- other (specify) ❑ D10 Accounting (A) ❑ E13 Labor Dispute (X) (A) ❑ D12 Dissolution of partnership (F) ❑ E14 Chapter 123A PethionSDP (X) ❑ BOB Wrongful death,G.L.c.229,s2A(A) ❑ D13 Declaratory judgment, ❑ E15 Abuse Petition, G.L. c209A (X) ❑ B15 Defamation (libel-slander) (A) G.L.c.231A (A) ❑ E16 Auto Surcharge Appeal (X) ❑ B19 Asbestos (A) ❑ D99 Other (specify (F) ❑ E17 Civil Rights Act,G.L.c,12,§.11H-1 (A) ❑ B99 Other (specify) P SUPERIOR COURT RULE 29. Requirement of statement as to money damages to prevent the transfer of civil actions to District or Municipal Court Departments. 1. Superior Court Rule 29, as amended requires the statement of money damages on the reverse side be completed. 2. Failure to complete the statent, where appro 'ate, will re t in transfer of this action (Superior Court Rule 29(2). SIGNATURE OF ATTORNEY OF RECORD 01 DATE p L McL llan,,—Esr 111/04//88 OFFICE USE ONLY - . . THIS LINE NOT WRITE BELOW DISPOSITION RECEIVED A. JudgmentEntered B. No Judgment Entered BY: ❑ 1. Before jury trial or nonjury hearing ❑ 6.Transferred to District DATEf ❑ 2. During jury trial or nonjury hearing Court under G.L.c.231, DISPOSITION.ENTERED ❑ 3. After jury verdict s.102C. ❑ 4. After court finding Disposition Date BY: ❑ 5. After post trial motion DATE: TO BE FILED WITH EACH COMPLAINT mtc 005-12ra7 COMMONWEALTH OF"MASSACHUSETTS ESSEX SS Superior Court Department Statement of Damages Pursuant to Superior Court Rule 29 To Prevent Transfer to District or Municipal Court Departments (Applicable to Civil Actions) ]. This action is not subject to Rule 29 Remand for the following reason(s): (concise statement as to why this action is not remandable, e.g., party seeking equitable relief, declaratory judgment,action against commonwealth or municipality,etc.) Plaintiffs seeking equitable relief pursuant to M.G.L. C 40A sec 21. 2. This action is subject to Superior Court Rule 29 and the following detailed statement pursu- ant to Rule 29 sets forth the facts in full and itemized detail upon which the plaintiff relies as constituting the damages in this action: (if tort action, for example, specify doctors' bills, hospital bills, out of pocket expenses, etc.that would warrant a reasonable likelihood that recovery will exceed $25,000 ) (if contract action, state with particularity damages which would warrant a reasonable likelihood that recovery will exceed $25,000 ) Plaintiffs seek to annul the actions of the .North_Andover Zoning Board of Appeals pursuant to M.G.L. C 40A, sec. 21. November 4, 198 1,4 pc (date) (skin-We of ey ofM, e l l ro so' David L. Y CARUSO &McLELLAN ATTORNEYS AT LAW ONE ELM SQUARE ANDOVER,MASSACHUSETTS 01810 PETER J. CARUSO TEL:(508)475-6700 DAVID L.McLELLAN FAX:(508)475-8880 NOTICE OF APPEAL TO: North Andover Zoning Board of Appeals 120 Main Street North Andover, MA 01845 Please take notice that on Friday, November 4, 1988, pursuant to Massachusetts General Laws Chapter 40A, Section 21, Douglas R. Mifflin and William S. MacLeod commenced an action in the Superior Court, Essex County, Massachusetts, appealing the decision of the North Andover Zoning Board of Appeals dated October 14, 1988, and filed with the Town Clerk of North Andover on October 17, 1988, to deny the application of 'Mifflin and MacLeod for a Special Permit to construct a single family home within 100 fee of a wetland at 163 Salem Street, North Andover, Massachusetts A copy of the Complaint commencing said appeal is attached hereto. Douglas R. Mifflin William S. MacLeod By their attorney Dated: November 4 , 1988 David L. McLellan a S �yC t'rL RECEiVEJ CARUSO &McLELLAN DLahti TOWN CLE.RY ATTORNEYS AT LAW NORTH ANDOVER ONE ELM SQUARE Nov 7 y 54 PN f�B ANDOVER,MASSACHUSETTS 0181011 PETER J.CARUSO TEL:(508)475-6700 DAVID L.McLELLAN FAX:(508)475-8880 November 4 , 1988 Town Clerk Town of North Andover 120 Main Street No. Andover, MA 01845 Re: 163 Salem Street, No. Andover, MA Dear Sir/Madam: Enclosed please find a Complaint and Notice of Appeal from a Decision of the North Andover Zoning Board of Appeals regarding 163 Salem Street in North Andover, MA. Please feel free to call this office if you have any questions. Very truly yours, David L. McLellan DLM/aed Encl Sent by Certified Mail, Return Reciept Requested No. P973282228 arm CARUSO &McLELLAN R�CEIVn j TOW_ et.ERK ATTORNEYS AT LAW NORTH ANOVER ONE ELM SQUARE ANDOVER,MASSACHUSETTS 01810 PETER).CARUSO TEL:(508)475.6700 DAVID L.McLELLAN FAX:(508)475.8880 NOTICE OF APPEAL TO: North Andover Zoning Board of Appeals 120 Main Street North Andover, MA 01845 Please take notice that on Friday, November 4, 1988, pursuant to Massachusetts General Laws Chapter 40A, Section 21, Douglas R. Mifflin and William S. MacLeod commenced an action in the Superior Court, Essex County, Massachusetts, appealing the decision of the North Andover Zoning Board of Appeals dated October 14, 1988, and filed with the Town Clerk of North Andover on October 17, 1988, to deny the application of Mifflin and MacLeod for a Special Permit to construct a single family home within 100 fee of a wetland at 163 Salem Street, North Andover, Massachusetts. A copy of the Complaint commencing said appeal is attached hereto. Douglas R. Mifflin William S. MacLeod By their attorney Dated: November 4, 1988 David L. McLellan RECE ` ED DANIEL LONG TOWN CLERK NORTH 0DOVER Nov l 1 s4 PF '80 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT DOUGLAS R. MIFFLIN and ) WILLIAM S. MacLEOD, ) Plaintiffs ) V. } Civil No. 88- THE NORTH ANDOVER ZONING BOARD ) OF APPEALS, acting by and ) through its Members: William J. } Sullivan, Augustine W. Nickerson, ) Walter F. Soule, Raymond A. ) Vivenzio, Esq. , and Anna P. ) O'Connor, ) Defendants ) COMPLAINT The plaintiffs herein invoke the provisions of Massachusetts General Laws, Chapter 40A, Section 21, as amended, and allege the following: 1. Plaintiff, Douglas R. Mifflin resides at R.F.D. #1 Box 399 , York, ME. and plaintiff, William S. MacLeod, resides at 231 Broadway Street, Methuen, MA and are an aggrieved party within the provisions of M.G.L. Chapter 40A, Section 17, as amended, as a result of the Decision of the Zoning Board of Appeals of the Town of North Andover dated October 14 , 1988 , which voted to deny an Application for Reconsideration on Relief from the Requirements of the Zoning Ordinance, affecting the premises commonly known and numbered CARUSO&MN F1 1 AN as 163 Salem Street, North Andover, Essex. . County, ATTORNEYS AT LAW ONE ELM SQUARE ANDOVER.MA 01810 TEL 608)475-8700 1 PAX:608)4758880 i Massachusetts (Lot 1) . Said Application for Reconsideration on Relief is attached hereto and incorporated herein as Exhibit "A" . Said Decision denying relief is attached hereto and incorporated herein as Exhibit "B". 2 . The defendants are the duly constituted and regular members of the Zoning Board of Appeals of the Town of North Andover, (hereafter, the Board) , which is a Special Permit Granting Authority, and all reside in the Town of North Andover as follows: William J. Sullivan 405 Salem Street North Andover, MA 01845 Augustine W. Nickerson 100 Moody Street North Andover, MA 01845 Walter F. Soule 70 Raleigh Tavern Lane North Andover, MA 01845 Raymond A. Viven2io, Esq. 11 Appledore Lane North Andover, MA 01845 Anna P. O'Connor 88 Martin Avenue North Andover, MA 01845 3 . MacMiff Developement Corp. the predecessor-in-title to the plaintiffs, purchased Lot 1 together with an adjoining parcel commonly known and numbered as 175 Salem Street, North Andover, Essex County, Massachusetts (Lot 2) on October 16, 1984 by deed recorded in Essex North District Registry of Deeds in Book 1881, Page 115. 6 1984 1 ch on October , Lot 1 4 . At the time of purchase CARUSO&McLELLAN ATTORNEYS AT LAW and Lot 2 were one parcel . ONE ELM SQUARE ANDOVER,MA D1810 TEL:15081475-6700 2 FAX:(508L 475-8880 5. In December of 1984 the North Andover Planning Board endorsed a Plan of Land showing the creation of Lot 1 and Lot 2 as a Plan Not Requiring Approval. This Plan was recorded at the Essex North District Registry of Deeds on December 28, 1984 as Plan No. 9710. 6. On March 12, 1985 MacMiff Developement Corporation filed an application to the Board for a Special Permit pursuant to the Town of North Andover Zoning By-Laws, section 4 , paragraph 133 for construction of a single family home within 100 feet of a wetland which is tributary to Lake Cochichewick on the land known as Lot 1 (163 Salem Street, North Andover, MA) . 7 . This original application was denied on July 2, 1985 by the North Andover Zoning Board of Appeals and an appeal from this denial was timely filed in the Superior- Court pursuant to G.L. c. 40A, sec. 21. See, MacMiff Development Corp. vs. Town of North Andover Zoning Board of Appeals, et al . , Essex Superior Court, No. 85-2281. 8. An Application for Reconsideration on Relief, (Exhibit "All) was filed on September 6, 1988 with the North Andover Zoning Board of Appeals. This Application was denied on October 14, 1988 and filed with the Town Clerk on October 17, 1988. 9. The plaintiffs are aggrieved by the Decision of the CARUSO&Ma.EUAW North Andover Zoning Board of Appeals denying their ATTORNEYS AT LAW Application for Reconsideration. A Notice of Appeal from the OPE ELM SQUARE . ANDOVER.MA 01810 TEL:6081 475-6700 3 FAX:ISM 4758880 Decision was timely filed with the Town Clerk of North Andover by mail on November 4, 1988. 10. The plaintiffs allege that the said Decision denying the Application for Reconsideration exceeds the authority of the Zoning Board of Appeals for the Town of North Andover. 11. Plan No. 9710 dividing the locus into two lots was submitted and recorded prior to the passage of a moratorium on development in the Town of North Andover by Town Meeting in May, 1985. Said moratorium expired on or about May, 1988 and is no longer in effect. 12 . Construction of the proposed single family dwelling has received necessary approvals from other town administrative bodies, including the Conservation Commission on April 23, 1985, the Board of Health April 17 , 1985, and most recently by the North Andover Planning Board in August 1988 . 13 . Construction as presented to the Board of Appeals by the plaintiffs is the only feasible plan for the locus. 14 . Said construction will cause no damage to the tributary to Lake Cochichewick, or to the lake itself, and meets all requirements of Title V of the Massachusettts Environmental Protection Act and of the Health Regulations of the Town of North Andover. CARLW&K&LELI.AN ATTORNEYS AT LAW 15. The Board's refusal to reconsider its decision of ONE EUA SQUARE ANDOVER.MA 01810 TEL(SM 47"700 4 FAX:150W 4TS-86M July 2, 1985, refusing to grant a special permit because of the lack of a town sewer and the moratorium, is based on a legally untenable ground and is arbitrary, capricious, unreasonable and whimsical. WHEREFORE, the Plaintiffs demand: 1. A judgment of this Honorable Court that the Decision of the North Andover Zoning Board of Appeals dated October 14, 1988 be annulled; 2 . In the alternative, a judgment of this Honorable Court ordering the Zoning Board of Appeals to reconsider and approve said Special Permit. Douglas Mifflin William J. MacLeod By their attorney Dated: November 4 1988 kpblt C' David L. McLellan Caruso & McLellan One Elm Square Andover, MA 01810 Tel. (508) 475-6700 BBO# 337840 CARUSO&KidZLLAN ATTORNEYS AT LAW ONE ELM SQUARE ANDOVER.MA 01810 TEL•608)475-6700 5 FAX;608)47548880 Received by 'Down Clerk: RECEIVED ' TO�ik GI.ERkK 114RTN CLERK EXHIBIT `QA's 44 TOWN OF NORTH ANDOVER, MASSACt1USE'rFS RECONSIDERATION ON I10AItO OF APPEALS 1 11 APPLICATION FOIL/ 1tCLXCF F 1toM THE 11EQUI1tEmEN'FS OF 'TIM. ZONING ORDINANCE Douglas R. MacMiff 1 East River Place Applicant William S. MacLeod ^Address Methuen,,MA_ 1 . Application is hereby made: a ) For a variance from the requirements 'of Section Paragrapli and Table _of the Zoning By Laws . For reconsideration b) /For a Special Permit under Section 4 _Paragraph133 of the Zoning By Laws . c ) As a Party Aggrieved , [-or review or a decision made by the Building Inspector or other authority. 2 . a ) Premises affected are land—X_.—and building (s )_____numbered 163 Salem _--------------- Street . b ) premises affected are property with frontage oil the North ( ) South (g) East ( ) West ( ) side of Sa_lem__________ -- Street , and known as No.__.__163_Salem-----—Salem--_____--- Street , c ) Pxcuiiscs affected are in Zoning 1)i,trict R3 alli] the premise:; affected have an area of 98,OO5N_square felt and frontage of 126.67 feet . 3. Ownership a ) Name and address of owner ( if joint ownership, give aLl' nauics ) : William S. MacLeod and Douglas R._Mifflin, both of_l—East River Place, Methuen, MA _ Date of Purchase' 10/17/84– __ Previous Owner MacMiff Develoment Corp. b) ' If appLicant is not owner , check leis/her interest in the premises : _Prospective Purchaser Lesee Other (explain) 4 Size of proposed building:' 64 front;l28 feet deep; " Height 2 stories ; 28 a ) Approximate date of crectioil: April_ 1989_____ b) occupancy or use of cacti floor : Residential___Y_ c ) Type of construction : Wood Frame—..,,—. __ ry'-12^--� fuet front ; 12 fent c ono; S . Size o£• existing 1x:il.din ------- Beight^__._.._stories ; _fc cl a Approximate date of erection: Not known__`-- . ) DP --- b) occuprincy or use of each floor , Storage______ 'c ) 'ry pe o f construction: ( -s_is__a_s_tora�e shed vh ch will be removed) G, Has 'there been .a previous appent , under zoning , on these pr. rmi.c.^.? yes' _ If so, when? A�pealfrom denial of original application for identical special permit is now pending in the Essex Superior Court. Description of relief sougl►t or► 'this petitionTfie applicant requests a specialpermit to construct a single family dwelling with re � e gra "g wiEFiin 1U0-f E— of a wetland which is tributary to Lake Cochichewick. r Deed recorded in the Registry of Deeds in Dook !1881. Fuge 115 Land ..Court Certificate No.— gook -- 'Page _ The principal points upon which I base my application are as follows : .(must be, stated in detail ) ;Sc: Construction of this dwelling is consistent with present use iii the area and will not adversely affect the ne gni or oo ,- v c es, or pe es riatls. s 35 t possibie to meet the setback requirements set forth in section. 4.133 (3). of zoning y- aws due to the wetlands on• the rear o t e of ani street aindge onSalem treef-. Rie SPY re-attached--have-been-appr-aned-by-;tlie-HcBear� the Ctonservat o Cotssion is approdve� the cionstrµc• ion as proposed on sai pans. I agree o, pay 't ie x Ing ee, a vertis ng irl newspaper, and incidental expenses* .. Si nature o Pe xt oerrs •;,. , Every application for' action by the Iloard shall be 'made on a form approved by., the Board . Thee forms shall be f•urnishec by the Clerk upon request . Any communication purporting to be an application shall be trentecl as mere notice' of intention to seek relief until suc - time - as it 'is - made on the . official application form. ALL information •calledlfor by the form shall be furnished by the applicant in the manner ' 4hereint:prescribed . Every-application shall b'e submitted with a list of '•"parties In Interest" dhich list ' shall • inelude .the petitioner , ;abutters , owners of land directly Dpposite 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 , bn the most recent applicable tax list , -iotwithstanding that the land of any such owner is located in another city ,;'. )r town, the Planning Board of the city or town,, and the Planning Board of • .very, abutting 'city or town. i 'Every application shall be submitted with ' an' application charge coot in.- -be amount' of •$25. 00. In addition, the petitioner shall bd responsible '�' ' .or any-and all costs involved in bringing the petition before the Board . .',.. ;uch, costs 'shall include inailing and publication, but are not necessarily,•'` ::-- Amited to these . ;very application sl►alt be submitted with a plan of land approved "by the .' toard .' No 'peti-tion will be brought before the Board unless said plan has leen submitted . Copies of the -Board ' s requirements regarding plans are ttached ' hereto or ' are available from the Board of Appear upon request . LIST OF PARTIES IN INTBRES'd' ' Name .., Address . William S. MacLeod '1 East River Place, Methuen, MA 01844 Douglas R. Mifflin 1 East River Place, Methuen, MA 01844 •D4vid•P. & Gayle D. Klemer .. '•175 •Saiem St., North Andover, MA 01845 'R'idgewood,Cemetery Assoc. 2 Johnson St., North Andover, MA 01845' '.' ,John W. & Linda E. Parker '121 Salem St., North Andover, MA 01845, Lewis J. & Beverly M. Jones 166 Salem.St., North Andover, MA 01845 Fdward L. & Frieda G. Bjornson i51 Salem St., North Andover, MA-01845 James E. &•Ann W. .Hamblet, J.T. 137 Salem St., North Andover, MA 01845 •W. W. Kurth & Isabel S. Kurth 21 Uoodbridge Road, North Andover, MA 0184° 1 n 1 r . (use additional �licet� �.f neccssary) 0' �1n 3= 4 • .Y J A EIT B W Any p0 ECC SAC if sc a � - al s.ia,1 l be filed `a�.) 7 TOWN OF NORTH ANDOVER ,,., within (�') cl -n-cr the >�_, . MASSACHUSETTS date of fi rg Of t:;2S l�OL W jr in the Office of the Town o BOARD OF APPEALS Clerk. � w- v O * Douglas R. MacMiff William S. MacLeod * Petition 21-89 * 1 East River Place * DECISION Methuen, MA 01844 * * * The Board of Appeals held a public hearing on Tuesday evening, October 11, 1988 upon the application of Douglas R. MacMiff and William S. MacLeod requesting a reconsideration for a Special Permit under Section 4, Paragraph 133 of the Zoning ByLaws so as to permit construction of a single family dwelling with related grading within 100' of a wetland which is a tributary to Lake Cochichewick on the premises located at 163 Salem Street. The following members were present and voting: William Sullivan, Acting Chairman, Augustine Nickerson, Clerk, Walter Soule,, Raymond Vivenzio and Anna O'Connor. The hearing was advertised in the North Andover Citizen on September 15 and September 22, 1988 and all abutters were notified by regular mail. Upon a motion made by Mr. Vivenzio and seconded by Mr. Soule, the Board voted, unanimously, to DENY the request for reconsideration on the grounds that it is improperly before this Board. Section. 3 of the Zoning Rules and Regulations reads as follows: "RECONSIDERATION: After the meeting had adjourned, there shall be no reconsideration of a decision of the Board, except upon written request of the applicant or a person aggrieved by the decision filed with the clerk not later than ten (10) days after the filing of the decision with the Town Clerk. A motion for reconsideration must be acted upon by those who participated in the hearing and decision, prior to the expiration of the period provided for appeal to the Superior Court by General Laws, Chapter 40A, Sec. 21. A motion to reconsider must be carried by four (4) concurring votes, and, if carried, shall have the effect of restoring the matter precisely as it stood before the decision was voted. A motion to amend the decision or a hearing motion to re-open the hea i g will be in order." BOARD OF APPEALS William Sullivan Acting Chairman Dated this 14th day of October, 1988 /awt ed 4 G'1 till : �t,.•.....;f� . i �� _"''.- . ,• �• :3:oto T"ri ,.= ri.' r ct this ivotica ' �:`�..nn• ;�,G �{'a •: . • .�= Town � lass '.C�'1 Fi Off e of the �'►►s CHU��4 b" .. '(. e a:.4 o `_'an TOWNMA.SSAt.'HUS TTS OF NOROVER o date o BOARD OF APPEALS NOTICE OF DECISION Douglas R. MacMiff October 14, 1988 William S. MacLeod Date • • " " ' " " " " ' . 1 East River Place 2 89 Methuen, MA 01844 Petition No.. . . .- . . . . . . . . . . . ., . . . . Date of Hearing. .Qgt0 r ,11, . 1988 Petition of Douglas. R•. .MacMi f . .and. W.i'lliam. S... MacLeod. . . . . . . . . . . . . . . . . . . . . . .. . . . . . .. Premises affected . . . . .163.Salem .Street. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . Referring to the above petition fior a stn 3i3 dlrl€` }l£i iiz C$3i .reconsideration for a Special Permit under Section 4, Paragraph 133 of the Zoning ByLaws. so as to permit . construction .of .a. single .family. .dwelling .with. related. grading. . .. . .within. 100 .ft.. o.f. .a.wetland.which Is .a. tributary. to. .Lake.Cochichewick . . . After a public hearing given on the above date,the Board of Appeals voted to . .DENY. . . . .. the REQUEST FOR RECONSIDERATION p9pulikk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . f X Signed JL't"�� 1 William .Sulliyarn,. .Acting Chairman Walter. .$Qu1e. . . . : . . . . . . . . . . . .. .. . . . . . .Raymond .Yivenzlo. . I . . . . . . . . . . . . . . Anna. .0'.Connor. . . . . . . . . . . . . . . .. . . . Board of Appeals REG�.91+E!t ! CARUSO &McLELLAN TOW4 CL LN ATTORNEYS AT LAW HORT-4 +NDWER ONE ELM SQUARE Nov 10 41 AN ANDOVER,MASSACHUSETTS 01810 U + PETER J.CARUSO TEL:(508)475-6700 j DAVID L.McLELLAN FAX:(508)475-8880 November 4, 1988 Town Clerk Town of North Andover 120 Main Street No. Andover, MA 01845 Re: 163 Salem Street, No. Andover, MA Dear Sir/Madam: Enclosed please find a Complaint and Notice of Appeal from a Decision of the North Andover Zoning Board of Appeals regarding 163 Salem Street in North Andover, MA. Please feel free to call this office if you have any questions. Very truly yours, I `Ls c David L. McLellan DLM/aed Encl Sent by Certified Mail,. Return Reciept Requested No. P973282228 i Cc WED CARUSO&McLELLAN 1'OWI CLERK ON ATTORNEYS AT LAW u KQR�H of'P OYER ONE ELM SQUARE NOV , 'D 41 A.M tee ANDOVER,MASSACHUSETTS 01810 PETER J.CARUSO TEL:(508)475-6700 DAVID L.McLELLAN FAX:(508)475-8880 NOTICE OF APPEAL TO: North Andover Zoning Board of Appeals 120 Main Street North Andover, MA 01845 Please take notice that on Friday, November 4, 1988, pursuant to Massachusetts General Laws Chapter 40A, Section 21, Douglas R. Mifflin and William S. MacLeod commenced an action in the Superior Court, Essex County, Massachusetts, appealing the decision of the North Andover Zoning Board of Appeals dated October 14, 1988, and filed with the Town Clerk of North Andover on October 17, 1988, to deny the application of Mifflin and MacLeod for a Special Permit to construct a single family home within 100 fee of a wetland at 163 Salem Street, North Andover, Massachusetts. A copy of the Complaint commencing said appeal is attached hereto. Douglas R. Mifflin William S. MacLeod By their attorney Dated: November 4, 1988 _ --Da—vid L. McLellan f I ' 7 11a COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT DOUGLAS R. MIFFLIN and } WILLIAM S. MacLEOD, ) Plaintiffs } V. } Civil No. 88- THE NORTH ANDOVER ZONING BOARD j OF APPEALS, acting by and ) through its Members: William J. ) Sullivan, Augustine W. Nickerson, ) Walter F. Soule, Raymond A. ) Vivenzio, Esq. , and Anna P. ) O'Connor, ) Defendants ) COMPLAINT The plaintiffs herein invoke the provisions of Massachusetts General Laws, Chapter 40A, Section 21, as amended, and allege the following: 1. Plaintiff, Douglas R. Mifflin resides at R.F.D. #1 Box 399, York, ME. and plaintiff, William S. MacLeod, resides at 231 Broadway Street, Methuen, MA and are an aggrieved party within the provisions of M.G.L. Chapter 40A, Section 17, as amended, as a result of the Decision of the Zoning Board of Appeals of the Town of North Andover dated October 14, 1988, which voted to deny an Application for Reconsideration on Relief from the Requirements of the Zoning Ordinance, affecting the premises commonly known and numbered CARUSO&MCLE LLAN ATTORNEYS AT LAW as 163 Salem Street, North Andover, Essex County, ONE ELM SQUARE ANDOVER.MA 01810 TEL:606i 475-6700 1 FAX:6081475.8680 Massachusetts (Lot 1) . Said Application for Reconsideration on Relief is attached hereto and incorporated herein as Exhibit "A" . Said Decision denying relief is attached hereto and incorporated herein as Exhibit "B" . 2 . The defendants are the duly constituted and regular members of the Zoning Board of Appeals of the Town of North Andover, (hereafter, the Board) , which is a Special Permit Granting Authority, and all reside in the Town of North Andover as follows: William J. Sullivan 405 Salem Street North Andover, MA 01845 Augustine W. Nickerson 100 Moody Street North Andover, MA 01845 Walter F. Soule 70 Raleigh Tavern Lane North Andover, MA 01845 Raymond A. Vivenzio, Esq. 11 Appledore Lane North Andover, MA 01845 Anna P. O'Connor 88 Martin Avenue North Andover, MA 01845 3 . MacMiff Developement Corp. the predecessor-in-title to the plaintiffs, purchased Lot 1 together with an adjoining parcel commonly known and numbered as 175 Salem Street, North Andover, Essex County, Massachusetts (Lot 2) on October 16, 1984 by deed recorded in Essex North District Registry of Deeds in Book 1881, Page 115. 4 . At the time of purchase on October 16, 1984 , Lot 1 CARUSO&McLF.LLAN ATTORNEYS AT LAW and Lot 2 were one parcel. ONE ELM SQUARE ANDOVER,MA 01010 TEL:5M 475-6700 2 FAX (SM475-SW 5. In December of 1984 the North Andover Planning Board endorsed a Plan of Land showing the creation of Lot 1 and Lot 2 as a Plan Not Requiring Approval. This Plan was recorded at the Essex North District Registry of Deeds on December 28, 1984 as Plan No. 9710. 6. On March 12 , 1985 MacMiff Developement Corporation filed an application to the Board for a Special Permit pursuant to the Town of North Andover Zoning By-Laws,section 4 , paragraph 133 for construction of a single family home within 100 feet of a wetland which is tributary to Lake Cochichewick on the land known as Lot 1 (163 Salem Street, North Andover, MA) . 7 . This original application was denied on July 2, 1985 by the North Andover Zoning Board of Appeals and an appeal from this denial was timely filed in the Superior Court pursuant to G.L. c. 40A, sec. 21. See, MacMiff Development Corp. vs. Town of North Andover Zoning Board of Appeals, et al . , Essex Superior Court, No. 85-2281. 8. An Application for Reconsideration on Relief, (Exhibit "A") was filed on September 6, 1988 with the North Andover Zoning Board of Appeals. This Application was denied on October 14, 1988 and filed with the Town Clerk on October 17 , 1988 . 9 . The plaintiffs are aggrieved by the Decision of the CARUSO&MCLELLAN North Andover Zoning Board of Appeals denying their ATTORNEYS AT LAW .Application for Reconsideration. A Notice of Appeal from the ONE ELM SQUARE ANDOVER.MA 01810 TEL 6081 415-6700 3 FAX:60814759&80 Decision was timely filed with the Town Clerk of North Andover by mail on November 4 , 1988. 10. The plaintiffs allege that the said Decision denying the Application for Reconsideration exceeds the authority of the Zoning Board of Appeals for the Town of North Andover. 11. Plan No. 9710 dividing the locus into two lots was submitted and recorded prior to the passage of a moratorium on development in the Town of North Andover by Town Meeting in May, 1985. Said moratorium expired on or about May, 1988 and is no longer in effect. 12 . Construction of the proposed single family dwelling has received necessary approvals from other town administrative bodies, including the Conservation Commission on April 23, 1985, the Board of Health April 17, 1985, and most recently by the North Andover Planning Board in August 1988. 13 . Construction as presented to the Board of Appeals by the plaintiffs is the only feasible plan for the locus. 14 . Said construction will cause no damage to the tributary to Lake Cochichewick, or to the lake itself, and meets all requirements of Title V of the Massachusettts Environmental Protection Act and of the Health Regulations of the Town of North Andover. CARUSO&MCLELLAN ATTORNEYS AT LAW 15. The Board's refusal to reconsider itsdecision of ONE ELM SQUARE ANDOVER,MA 01810 TEL 6087 47S-e700 _ 4 FAX:608)4758880 July 2 , 1985, refusing to grant a special permit because of the lack of a town sewer and the moratorium, is based on a legally untenable ground and is arbitrary, capricious, unreasonable and whimsical. WHEREFORE, the Plaintiffs demand: 1. A judgment of this Honorable Court that the Decision of the North Andover Zoning Board of Appeals dated October 14, 1988 be annulled; 2 . In the alternative, a judgment of this Honorable Court ordering the Zoning Board of Appeals to reconsider and approve said special Permit. Douglas Mifflin William J. MacLeod By their attorney Dated: November 4, 1988 "C 'c Davi L. McLellan Caruso & McLellan One Elm Square Andover, MA 01810 Tel (508) 475-6700 BBO# 337840 CARU50&Mr1 cL L AN ATTORNEYS AT LAW ONE ELM SQUARE ANDOVER,MA01810 TEL:6081475-6700 5 FAX:SM 475A880 •R 'ceived by Town CLerk: RECEIVED TOWN CLERK NORTH01DOVER EXHIBIT "A'' SEP 6 �a 44 TOWN OF NORTH ANDOVBR, MASSACHUSETTS BOARD OF APPEALS RECONSIDERATION ON h'1 APPLICATION FOR/ 1tELIEF FROM THE REQUIttEMENTS OF THE ZONING OItDiNANCIi Douglas R. MacMiff 1 East River Place Applicant William S. MacLeod Address Methuen, MA_—�!_ 1 . Application is hereby made: a ) For a variance from the requirements 'of Section Paragraph and Table _of the Zoning By Laws . For reconsideration 'b) /For a Special Permit under Section 4 _Paragraphl33 of the Zoning By Laws . c ) As' a Party Aggrieved, for review of a decision made by the Building Inspector or other authority. 2. a ) Premises affected are land—L. -and buildings )^_nuuibered _ 163 Salem __—_—_—____-- Street . b) Premises affected are property with frontage on the North { ) South (g) t.ast ( ) west ( ) side of Salem Street , and known as No. 163 Salem _ Street - c ) Premises affected are in Zoning l)ir,tricl• R3 and the prcwisus affected have an area of_ La2.5 _square feet and frontage 01 126.67 feet . — 3. Ownership a ) Name and address of owner ( if joint ownership, give aLi• namcs ) : William S. MacLeod and Douglas if R. Mflin .bo, th of l_East River Place, Methuen MA Date of Purchase 10/17/84 Previous Owner MacMiff Development Corp. b) ' If applicant is not owner , check his/licr interest in the premises : Prospective Purchaser __Lesee Other (explain) qa Size of proposed building:' 64 ___ front; 28 feet deep; _f Height 6 stories; 28 _— eet . a ) Approximate date of erection: Aprii, 1989_____ b) Occupancy or use of each floor : Residential____ c ) Type of construction: Wood Frame_. ---.-----_—�.— ' Size of existing building: 12 Cetct front ; 12-----fact. do-op: lleiglat Stories; a ) Approximate date of erection:__Not known_____ b) occupancy or use of each floor : Stora e____� 'c ) Type Of construction: (This is a_s_torag_e shed whish will be removed) ti . idas tlicre Uccn a previ.ouz j1ppcnt , unaer zoning , on these_ hr. ami.es? when? A al from denial of original application for identical xi .>o, g Yes __— special permit is now pending in the Essex Superior Court .1 Y1 Description of relief sought ' on 'this petition 11i& applicant requests a• special permit to construct a single family dwelling with re pa gra ng w��Fiin 100'fE: of-a wetland which is tributary to Lake_Cochich_e_wic_k. ?. Deed recorded in tiie Registry of Deeds in Book k1881• Mage 115 Land . Court Certificate No.-- N�Book -- 'page he principal points upon which I base my a Iication are as followsr • ,(must be stated in detail ) pR :,�.. 1, Construction of this dwelling is consistent with present use iii the area and will not adversely affect the neighborhoo ,• ye c es, or Nrestriaps. It- Is 05t poss157e to meet the setback—requirements setforth in section. (3). -65=6 zoning y- aws due for the wetlands on-•-t-he rear of the lot and streeettcTaina a on a em trees. 7EF �I 3'h' Co-s�erva�t lC�or�m'ission-'alzp�-s'ata'pCpatr�eda--hthagveg-io7nstrpa ion as propoe-s•ieide�ol!Eh-Eaeprlansa rte topaye �iistag ee, a .-'- -e��i•- vertisxng Irl newspaper, and incidental expenses* j., Signature or Pe it operrs .;a. Every application for' action by the 136ard sliall 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 ))c treated as more notice of intention to seek relief until such time - as it 'is . made on Che official application form. All information called ofor by the form shall be furnished by the applicant in the rnanner ' t;herein;;prescribad . • ii 4.b Every-application shall be submitted with a list of '•"Parties In Interest" . erhich list shall • include .tile petitioner, •abutters , owners of land directly )pposite on any public or private street or way, and abutters to •the abutters ,withrin ' three hundred feet _( 300 '. ) of the property line of the ?etitiloner' as they appear • on the most recent applicable tax list , lotwithstanding that the land of any such owner is located in another city .,'. )rtown, the ;Planning Board of the city or town, , and the Planning Board of :very. abutting ,city or town. ''very application shall be submitted with ' an application charge cost in ' :he amount, of •$25 . 00. In addition, the petitioner shall be responsible :'�' ; ;or any, and all costs involved in bringing the petition before the Board . .:.' ;uch, costs shall include i►railing and publication, but are not rtecessarily.';: :, limited to these . ; :very application shall be submitted with a plan of land approved by the ioard.• No petition will be brought before the Board unless said plan has )een submitted . Copies of the -Board ' s requirements regarding plans are .ttached ' hereto or are available from the Board of Appeals upon request . LIST OF PARTIES IN INTEREST ' Name Address 13,Iliam S.' MacLeod 'T East River Place,•Methuen, MA 01844 Douglas R. Mifflin 1 East River Place, Methuen, MA 01844 •D&vai�'P. & Gayle D. Klemer . ''175 -Salem St., North Andover, MA 01845 Ridgewood,Cemetery Assoc. 2 Johnson St., North Andover, MA 01845 ,John W. & Linda E. Parker 'l21 Salem St., North Andover, MA 01845• Lewis J. & Beverly M. Jones 166 Salem.St., North Andover, MA 01845 Edward L. & Frieda G. Bjornson i51 Salem St., North Andover, M41•01845 James E. &• AM W. .Hamblet, J.T. 137 Salem St., North Andover, MA 01845 'W. W. Kuith & Isabel S. Kurth 21 Poodbri:dge Road, North Andover, MA 01849 t (use additional sheets if''necessary) `._ FORM A I-IIJ,j W7D 1:, T To REnul'RF APPROVAI, , ri -- -- 8.• 2 1976 To The PlanningBoard of the a Town of North Andover. The undersigned..,wishes to record the accompanying plan and requests a determina— tion by said Board that approval by-it under the Subdivision Control Law is not required. The undersigned believes that such approval is. not required for the following reasons: 1. The division of land shown on the accompanying plan is not a subdivision because every lot .shown thereon has the an,ount of frontage required by the North Andover Zoning By—Law and is on a public Nays namelY9 or a private way, namely, being land bounded as follows% 6Y Lor Z C75�i2cry 4Y gelOc 7 PAS/ 2. Title references North Essex Deeds, Book 452!& Page � 9 ; or Certificate of Title No. , Registration Book , page ; or Other: Received by , Applicant's signature Date: °� �EMIVE ,� Applicant's address Time: o F ._,2 of ,4�c/©o✓+��2 ,�On t/Lr.�.y is /A/,G. IfOWN ICLE?K ON J. 1.11VII08 T/Lre)AJ .57- .NE7�y{✓ 7,L/ .�i< u ti. 5i gat r . Atannuro eoti Ov.-ner's signature and address if not the 't-0 f0 zo `Q pZ applicant: R/C,yq'AW RV6GP-r.5 41 Fr::,oQ0 A441VA6t/ Sf' r Boui°d on 1. The Borth Andover Planning Board has determined that saidP lan does not require approval under the subdivision control law, and the appropriate endorsement has bean made upon the same. 2. The North Andover Planning Board has daterm3ned that said plan shows a subdivision, as defined by G.L. c. 41, s. 8:L-L9 and must therefore be re-submitted to it for approval under the subdivision control law. Very truly yours, NORTH AfWM PLAN mu BOARD BY I� Date. 11J� 1�LLL1_L_ S 19=00-08"C 150.00' 130.00' ' 20 DRA/N bbl v3 to LOT 3Atao LOT 4--4 W /.O/ACRE j'rn /. OU ACRE v N � ,• N� 6� y kA 24 50� /05.//' ...::.... 82.00 1 ---N201 04= 36.10 ;, 9. 92' 22.60 - 22 29 .. --N24'-31=05W --N 08' 4/-2311/ ..•— N17-OD=02 :kV --N23-3/=¢3 :W N F j/AC,CF. 0/T//BOWERS N F t�i�/LL/r4MJ. ELA/NE N�F iC'E!//N B. f'{T//N/F.PED B.GSC'/FF/N At CL.ANCY, IR.. o , NO. ANOpj/E,P PLANN/rf/� BGt9�PD I IISRSBYCCR71FY THAT TN/S PLAN D066 NOT REQWR6- TH/S PLAN CO/YFOew5 7o THE APPR00AG Of THE ND.AN004E� THE RULES AND 1PEGUL.9TX- )WS PGANN/NG BOARD. OF T1-1E RECz/STEkv Of GLE'D�S �A7-E : �_ OF /LIASSACHIlSETTS. & Q/i/)e • THE ABOV1-'DO-S i tS KC-7 A CETA MNAII014 C-Y AS TO COMU-Ift + r CM11IAIInAIS T'S �:C :; . .� : _:, '=. .l::G BOARD Fpm RF(91,v^TiPY USE ONL Y PLAN of LAND in NO-, ANDOVER , MASS, Showing A Change in Lot Lines As Drawn For Richard Roberts SCAL E- I% 40' JAN. 25, 1978 OF f Ac(adaver onsultants ° , mc. 07,70 8 Tilton Street Methuen , Mass. 0 40 80``'�""' 120 Ft.