HomeMy WebLinkAboutMACMIFF DEVELOPMENT CORP Received by Town Clerk: REMYED
DANIEL LONG
TOWN UERK
NORTH A:-,'DOVER
SEP 6 104s AN '88
TOWN OF NORTH ANI)OVER, MASSACHUSETTS
BOARD OF APPEALS {
RECONSIDERATION ON Jl:! Jr,
APPLICATION FOR/ RELIEF FROM THE REQUIREMENTS OF THE 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 Paragraph
and Table I _of the Zoning By Laws .
For reconsideration
b) /For a Special Permit under Section 4 Paragraph133 of tate 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—X-and building (s ),_numbered- _
163 Salem _----____-- __--Street .
b) Premises affected are property with frontage on the North ( )
South (X) hast ( ) West ( ) side of
Street , and known As No.--.--163 Salem..... __-_ Street '
c ) Premises affected are in Zorrincl Di strict- R3 _, and the premises
affected have an area of 981005 square f'je and frontage of
126.67 feet .
3. ownership
a ) Name and address of owner ( if joint ownership, give all names ) :
William S. MacLeod and Douglas R. Mifflin,both of 1 East River Place, Methuen MA `
Date of Purchase 10/17/84_- -_---Previous Owner MacMiff Development Corp.
b) If applicant is not owner , check his/her interest in the premises :
Prospective Purchaser _ Lesee Other (explain )
4.1 Size of proposed building:' 64 front; 28 feet deep;
" Height 2 stories; 28 --feet .
a ) Approximate date of erectioil : April, 1989_____
b) occupancy or use of each floor : Residential
c ) Type of construction: Wood Frame-..,.---.---- --
5 . Size of existing building:_12 _ _ f.eet front ; __feet deep;
Height = stories ; -- - -Leet .
a ) Approximate date of erection:_ Not known_-__
b ) Occupancy or use of each floor :_Storage—___—
c ) 'type of constructiolt: (This is_a storage g ed_�h;9b 11 be removed)
G , itas there been .� previo1.1r. appeal , under zot,ing , on these hr. emiaas?
YesIf so, when? peeal from denial of original application for identical
special permit is now pending in the Essex Superior Court.
Aescription of relief sought on t•iris petition ljje- applicant requests a•
special permit to construct a single family dwelling with re L4Ted gradingwi�fi�n-`7I>0 M
pf a wetland which is tributary to Lake Cochichewick.
$. Weed recorded in the Registry of feeds in Boolc 4881. Page 115
Land . Court Certificate No.--
Book - Yage
The principal points upon which I base my application are as follows :
.(must be , stated in detail)
Construction of this dwelling is consistent with present Use the area and will
not adversely affect the nei borhoo , v c es, or estriaas. it. is not possiBle
_ to meet the setback requirements set forth in section. • of the zoning y- aws
due to the wetlands on- the rear o the ot freet 3" on em .
PLIQ ttieSYSUEr n8,`�attadied-wave-bee&r L rroved-� epad rl - -�
the Ctonsep yt o Co mission s appr�ve� the constry�c ion as propose on sai pans.
I agree o a re a ing ee, a ertis> ng in r spapers and incidental
expenses*
i,
Signature o Pe ata r�erTs �•
Every application for action by the L3oard 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 time - as it 'is - made on the I
official application form . All information 'Called for by the form shall .
be furnished by the applicant in the manner ' therein,,prescribed ,
! ii .
Everyoapplication shall bb submitted with a list ' of' . Parties In Interest" •
4hich list shall • include .the petitioner , ,abutters , owners of land directly
3ppos'ite on any public or private street or way, and abutters to .the
ibutters ;within : three hundred feet ( 300 : ) of the property line of the
?etitfoner' as they appear . on the most recent applicable tax list , -
iotwithstanding that the land of any such owner is located in another city ..'.,
:)r town, the L'Lanning Board of the city or town, , and the Planning hoard of
!very. abutting city or town.
'Every! application shall be submitted with an appl.ieation 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 . -.",'
;uclti, casts shall include inailing and publication, but are not necessarily,.':;'..
.imited 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 bras
teen submitted . Copies of the Hoard ' s requirements regarding plans are
ttached ' hereto or are available from the Hoard of Appeals upon request .
LIST" OF PARTIES IN INTEREST
Name Address
William S. MacLeod '1East River Place, Methuen, MA 01844 '
Douglas R: Mifflin 1 East River Place, Methuen, MA 01844
•DitvUl•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
Edward L. & Frieda G. Bjornson '151 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 Woodbridge Road, North Andover, MA 01845
(use additional sheets if ''necessary)
L
&ORTN
UJ
3� a•s+ •••.•..a pL
' � � 9SSACNU`+ES
' Any appeal shall be filed
w� C) TOWN OF NORTH ANDOVER within (20) d vs
>.-J_, { �+ �, �7,aer the
MASSACHUSETTS date Of filing of this Notice
in the Office of the Town
BOARD OF APPEALS Clerk.
462a
*
*
Douglas R. MacMiff
* Petition 4i 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 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
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
bo fli[ O
Y ry _ '7`y.1'�'
p cj �RpT�/r,�Qg
this p A�rJ , � Vj IvO\i C+L ~f.,APRIL?"
3f t e of the Town ;:, Idbs f• c f�1ed e
Be,Oifhtl ` b th
uo �Cho
WA-Z.31; ,_ TOWN OF NORTH ANDOVER `''t+,'S �o��
MASSACHUSETTS �1tin�� �''C„o{off -
� datie o �,��oe
BOARD OF APPEALS �G;ey� �r '
NOTICE OF DECISION
Douglas R. MacMiff
William S. MacLeod Date, . . . . . , October 14, 1988
1 East River Place
Methuen, MA 01844 Petition No.. 21-8. . , . . . . , , .
Date of Hearing, ,October .11t_1988
Petition of Agwlas. & .iiaaMiff . .440.W.:UI M. $.. N4049d. . . . . .. . .. . . . . . . . . . . . . . . . . . . . . .
Premises affected . . . . .163.Salem .Street. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Referring to the above petition for a MKIMIrecon&ideration
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.. of. .a.wetland .which .is .a.tributary. to. Lake.CDrhichewick . . . . . . ., . .
After a public hearing given on the above date, the Board of Appeals voted to . DENY. . . . . : the
REQUEST FOR RECONSIDERATION
[ . . . . . . . . . . . . . . . . . . . :. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ._ . . . . . . . .
f
8`*ped J ,
JWUi/lliam ,Sullivan,. .Acting Chairman.
. . , , , .Augustine ,Nickersgn,. Clerk, , , , , , :
Walter. ,.S.qule. . . . . . . . . . . . . . . . . . . . . .
8aymond .Vivenzio. . . . . . . . . . . . . . . . .
Anna. W.Connor. . . . .. . . . . . . . . . : . . . .
Board of Appeals
Sec. 2- WITH)L to the G,
be withdraw the
notice in writing pI
An applic ati on may by
the Board-
Clerk at any
time prior to the hearing t
Sec. 3 RECONSIDERATION ;I
has adjourned, there shall be no recon- 1
,after the meeting except upon written re nest
a person aggrieved by the decision fi ed w th the
sideration of atdc�isipn of the Board, lin o he decision with
Of the a lican er e 9 on by
clerk not 'i at than en da a a ation must be acted upon
t ono Clerk. F. motion for recons and decision, prior to the
those who participated in the hearing appeal to the Superior Court
period provided for app
expiration of the
Chapter' LEO=i, Sec. 21•
by General Laws, carried by four concurring e
r matter
A motion to reconsider must be � � motion to amend I
and ,
if carried , shall neve the a ei"
vo-=s' stood before the 'i will be in order.precisely as a mo on to re-open the hearing
t e ,..ec s on o the hearing must be
If any new evidence is to be taken ,
re-opened.
RE-OPEP1ItdG OF NEARIl`1G ut on the ;
Sec. 4 d the case shall be p
uly vote ' iven as in the case
is d
If a re-opening and notice shall be g l
calendar' for a second hearing
of the original hearing.
Sec. 5 RE-APPLICATION
application covering a matter which has been unfavorably
No new app ermitted unless there has sincebeen
on by the Board shall be P affecting such property
acted upon in circumstances
substantial change
prior decision. EXTENSIONS
Sec. 6 ONE YEAR LIMITATION ON GR;,NTS: all permits
ranted by the Board ,
If an application is g the work shall .be obtained. and con-
' for the prosecution of year from the date of filing
necessary Town Clerk.
struction shall be commenn theiofficenOfythe the
of the Board' s decision in be granted by
d time may
Superior Court under General �
Reasonable. en appeal
eal to the ood cause shown.
Board in the case of an
21p or, for other g ,
Laws, Chapter 40As
i
4
r
Received by Town Clerk :
RECEIVED
DANIEL A DANlCI. LONG ?FORM A
TOWN CLERK
NORTH Al1)OVER APPLICATION FOR ENDORSEMENT OF PLAN
Nov 11 3 45 fM 114 BELIEVED NOT TO REQUIRE APPROVAL
To the Planning Board of the Town' of North Andover:
The undersigned wishes to record the accompanying plan and requests a'
determination by said Board that approval by :it under the Subdivision .
Control Law is not required . The undersigned believes that such , pproval
is not required for the following reasons : l
1. The division of land shown on the accompanying plan is not a sub-
division because every lot shown thereon has the amount of .frontage
required by the North Andover Zoning By Law and is on a public - way ,
namely , or a private way , namely ,
, being land bounded as follows :
_�.
4401 474 /75 cS74 6oufr decd 07 74;�e
N r7�4 bO Sa/e.& J74 d o Al 70��40 45 - ,6
2 . The division of land .shown on the accompanying ..plar'L-AA ..not a. sub-
division for the following reasons:
3. . Title reference North Essex Deeds , Book ;`.: ; : Page'` `UIS' -, _or
Certificate of Title No . --- ' Registration Book --
Page
Applicant ' s Signature : Owner ' s signature and address if not
the licant :
,G>ES
Applicant ' s Address : a /F DEd MEVT CoP.
3Z ,i1ToT
- -
Received by Town Clerk ;
Notice to APPLICANT/TOWN CLERK of action of Planning Board on
accompanying plan :
I . The North Andover Planning Board has determined that said plan
does not require approval under the' Subdivision Control Law ,
and the appropriate endorsement has been made upon the same.
2 . The Nor Andove Pla ing Board as terminad t t aid plan
show a ubdivi ion , a define by G.L c. 413, 81- and
mus the efore a re-s mitte to it fo app r al under the
Su divis on C trol Law .
, Very truly yours ,
NORTH ANDOVER PLANNING BOARD
7.
�gy _
' Tr .�.t�� �.
OFFICE OF
TOWN COUNSEL RECEIVE0
89 MAIN STREET DANIEL 10'?G
NORTH ANDOVER, MASSACHUSETTS 01845 TOWN dt;i ��
NORTH DOVER
NOR TM } )[ 12 57 j'M�� /]�j/w�
DOMENIC J.SCALISE o? y` °S° JU5� (677)b82.4153
1- p
PETER G.SHAHEEN + . (617)689-0800
TOWN COUNSEL • °<
40
SSq[HU`'E
TO North Andover Zoning Board of Appeals
FROM: Town Counsel
DATE July 14 , 1986
RE MacMiff Development vs . North Andover Zoning
Board of Appeals , Superior Court C.A. #85/2281
Please be advised that the above matter is scheduled
for trial on Wednesday, July 16, 1986 at 11: 30 A.M. in
Peabody District Court . As you are a named defendant in
this case, it may become necessary for you to testify at
this trial. Please make yourself available at this time
and if you are unable to appear for good reason please
notify this office immediately.
s gCf.LL(t,fLys
In•iCRi� NORTH
TOWN 03.1A Obit .o 1hQ
N011t'� pt�tli�YER �� a
x
so
8S.{CNJ�
TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
July , 1985
MacMiff Development Corp.
163 Salem Street
Petition No. 31f - 85
Mr. Daniel Long, Town Clerk
Town Office Building
North Andover, MA 01845
Dear Mr. Long:
The Board of Appeals held a public hearing on Monday evening, June
10, 1985 upon the application of MacMiff Development Corporation.
The hearing was duly advertised in the North Andover Citizen on
May 23, and May 30, 1985, and all abutters were notified by regular
mail. The following Board members were present at the public hear-
ing and again on June 26, when the Board rendered its decision:
Frank Serio, Jr. , Chairman; Alfred E. Frizelle, Esq. , Vice-Chairman;
Augustine Nickerson, William Sullivan, Walter Soule.
The Petitioner seeks a Special Permit under Section 4 .133 of the
Zoning By-Law so as to permit the construction of a single-family
dwelling within 100 feet of a tributary to Lake Cochichewick on
the premises located at the south side of Salem Street, known as
163 Salem Street.
Mr. William MacLeod appeared on behalf of the Petitioner and test-
ified that perculation tests were approved by the Board of Health
and the Conservation Committee issued a negative determination.
The Petitioner looked at alternatives, but they were not acceptable.
There is no town sewer.
Speaking in opposition were Mr. James Hamblet, Mrs. Gail Klener,
Mrs. Constance McAndrew, and Mrs. Burenson. In summary, the oppo-
sition expressed environmental concerns for Lake Cochichewick.
Upon a motion by Mr. Frizelle, seconded by Mr. Sullivan, the Board
voted unanimously to deny the Special Permit as requested.
The Board .finds that the provisions of Section 10.31 were not
satisfied, specifically, that the site is not appropriate be-
cause of the lack of a town sewer. The provisions of Section
4 .133 (1) also were referenced and the grant of the permit
would not protect the public health and welfare. The Board al-
so took note of the action of Town Meeting, prohibiting construc-
tion around the Lake and the pending study of the Lake.
Sincerely,
B RD OF APPEALS
F nk Serio, r. , Chairman
AEF/kdp
�.�'• ,,� ifffCltlYf O
DANIEL LONG
CLERK
F• �"'���" r'" WATH ANDOVER
i.• Baas •�09'
..........
CU
Any appeal shall be filed �' H" Wg' JuL 1 4 ai M ,
585
within (20) days after the TOWN OF NORTH ANDOVER
date of filing of this Notice MASSACHUSETTS
In the Office of the Town
Clerk BOARD OF APPEALS
NOTICE OF DECISION
Date . . . JulY. . . . 195 . . . . . . . . . .
Petition No.. . . . . . . . .�5 . . . . . . . . . .
June 10 195
Date of Hearing. . . . . . . . . . . �. . . . . . .
Petition of . . . .MacM1ff. Development . Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Premises affected . . . . .1.63. .Sa.l y-m- .St.,. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Referring to the above petition for a S p e c i a 1 P e rmi t
a.��.•. .�+.•.133. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
so as to permit . . . . construOtio.n. within, .1.p0. .ft.. . o. , t.r.ibutarp. .to. lake . . . . .
Cochichewick. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . .
After a public hearing given on the above date, the Board of Appeals voted to .Ae.np. . . . . . the
and hereby 844her,o •ham 12vil®y lase ete to 'Dana
. . . . . . . . . . . . . . . . . . . . . . . . . . .
f0 `.�..^ e6r '^"+dfL�f 0," QhQ= IItosl�rbae®d "pan the fallmign cQugam.
Signed
Fri-n1 .k Serio Jr. Chairman
Alfred. .E.. .Frizelle. .Esq ,V,ice, Chairman
august ine. .Nic.kers on
William, Sul_l,ivan. . . . . . . . . . . .
Wa It er . S.oui e . . . . . . . . . . . . . . . . . . .
Board of Appeals
� s
REC�IYID. OWHIN
I�W,1I� F NORTH ANDOVER
TOWN CIF(� S8ACHUSETTS
NORTH AND01!h Any appeal shall be filed
Am Z 1 1124 AN ��,"°�T_"��o within (20) days after the
date of filing of this Notice
• • in the Office of the Town
Clerk.
�1 b•,ne M•..� u
,SS4CNU'+t4
NOTICE OF DECISION
Date. . . . . .Au.g-u s t. .2JI . 19,85 . . . . .
Date of Hearing . . Jame . 1.7.0. .1985
Petition of . . . .. . , ,MacMiff. Development Corporation. . .. ... . . . . .. ..
Premises affected , . . , ,, 163 .Salem .street .
. . .. . .. . . . .. . .a. . . . . . . . .
Referring to the above petition for a special permit from the requirements
of the . . . . . . . . . . . �ONItq. BYLAW.-„SECTION 2. 75.
. .. . . . . . . . . . .. . . .. . ..
so as to permit . . . . . . , A ,COMMON,DRIVEWAY. . .. . . . . . .. . . . . . . . . . . .. . . . . .. . . .
. . . . . . . . . . .. . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . .. . . . . . . . . . I .. . .. .. . . . . . . . .. . . . ..
After a public hearing given on the above date, the Planning Board voted
to . . . DENY. . . . . . . .the . . . . . . . . SPECIAL .PERMIT . . . . .. . . . . . . . .. . .. .
. . . . . . . . . . . . . ... .
based upon the following conditions:
Signed
Aicha.e.L.k.. Rgherj:Ax..Ch,a.ixman
. kau1. A... .Beds.txv¢�e. .�ice:.Cb�irman
. J.ghu.A:•. .�S m.e.s,. .J r.•.> .C 1 exk .
. paha. J... .Bvxke . . . . . . . . . . .. . ..
. .. . . .. .
Planning BoaM
Any appeal 'shall 'be filed
���CEWD within (20) days after the
70WJU"d�GN OF NORTH ANDOVER date of filing of this Notice
et'/�Ht71ZrxuYei A S S A C H U S E T T S irm the Office of the Town
CWX
Q`ai�aC ..�O
1- w
'ACXUb t
August 19 , 1985
Mr. Daniel Long, Town Clerk
Town Office Building
North Andover , MA 01845
Re: MacMiff Development Corporation/Common Driveway
Special Permit for 163 Salem Street
Dear Mr. Long :
The North Andover Planning Board held a public hearing on
Monday evening, June 17 , 1985 at 8:00 p.m. in the Town Office
Meeting Room upon the application of MacMiff Development
Corporation. The hearing was advertised in the North Andover
Citizen on May 23 , and 30 , 1985 . The following members were
present: Michael P. Roberts , Chairman; Paul A. Hedstrom,,: Vice-
Chairman; John A. James , Jr. , Clerk ; Erich W. Nitzsche; and John J.
Burke .
The petitioner seeks a special permit under Section 2 ,
Paragraph 2 . 75 Driveways of the North Andover Zoning Bylaw, which
requires a Special Permit for a driveway to service more than
one ;lot. The premises is known as 163 Salem Street, Lot 1 . The
lot is situated in a Residential 3 ( R-3) zoning district , and
contains an area of 98 ,005 square feet and frontage of 126 . 67
feet-.
At the hearing, Bill MacLeod, the project engineer made
the following presentation at the public hearing.
There is a driveway maintenance agreement on Lot 2
for the benefit of Lot 1 . It is already recorded at
the Registry of Deeds.
- The applicant does not want two curb cuts on Salem St.
- Lot 1 is not owned by Lot 2 owners (Clemers) . Construct-
ion of a new driveway on Lot 2 would require a severe cut
through an existing knoll and take a mature tree.
-2-
The reasons for the petition are safety, aesthetic and
economic .
Discussion followed concerning: 1 ) the general use of
common drives and if there is any merit to this application in
particular. 2) What, if any, alternative access could be pro-
vided if a common drive was not used . The engineer indicated
alternative access is possible, however , this proposal provides
the best access .
The following members were present and voting at the
August 19, 1985 meeting when the board rendered their decision:
Michael P. Roberts, Chairman; Paul A. Hedstrom, Vice-Chairman;
John A. James, Jr., Clerk; Erich W. Nitzsche.
MOTION: By Erich Nitzsche to deny the petition for a Special Permit.
SECOND: Paul A. Hedstrom.
VOTE: Three in favor of the motion, one against (John James, Jr.) to deny
the petition for a Special Permit to allow for a common driveway
on Lots 1 & 2 Salem Street, based on the following: 0
1 . The applicant has not demonstrated alternative
access to Lots 1 and 2 and has therefore not
exercised the various options.
2 . There is sufficient street frontage on Lot 1 to
provide an individual driveway to service the pro-
posed dwelling without modifying the existing drive.
3 . Lot 1 and 2 was originally one lot. Under the
Approval Not Required Plan process 2 lots were
created. The endorsement of the signed plan by the
Planning Board did not indicate the future approval
of a common driveway proposal. The applicant was
aware this condition existed prior to purchasing
said lot. Provisions should have been made to
service each lot individually.
k . The North Andover Zoning Board of Appeals has
issued a written Special Permit denial of the
proposed house construction on Lot 1 due to its
proximity to a tributary in the Lake Cochichewick
Watershed. A change in house size or location
would require modification of the driveway plan.
In denying this Special Permit request, the Planning Board-,
pursuant to Section 10. 31 - Conditions for Approval of Special
Permits of the Zoning Bylaw, find the following:
a) The proposed common driveway is not the only location
or the most appropriate location for a driveway to
access onto. Salem Street;
-3-
b) The use as a common access will adversely affect the
neighborhood due to its relative placement on Lot 1 .
Two driveway access points can clearly be accommodated
on both lots.
c) The driveway will pose a nuisance and hazard to vehicles ,
particularly vehicles converging at the proposed common
driveway.
Based on site visits , the public hearing process , and
testimony from town boards and departments , the proposed common
driveway is not in harmony with the general purpose and intent
of the Town ' s Zoning Bylaw, specifically , Section 2. 75.
"A way located on a lot which provides vehicular access
to the buildings on the lot. Each driveway shall ser-
vice no more than one lot. Subject to the granting of
a Special Permit from the Planning Board , a driveway
maybe shared by not more than three (3) lots . "
Sincerely,
PLANN�IN�G�B�OQARD
�"�`.rv`
Michael P. Roberts
Chairman
MR:KN':ns
cc: DEQE
Fire Chief
Highway Surveyor
Public Works
Conservation Commission
Police Chief
Board of Health
Building Dept.
Applicant
Engineer
Fide
s +
�t��4J.iitY-C.Kj
CARUSO, COHEN, McLELLAN & BARRON
ATTORNEYS AT LAW
E ELM SQUARE
ANDOVER,MASSACHUSETTS 01810
GERALD M.COHEN* 617/475-6700 BOSTON OFFICE:
PETER J.CARUSO 50 MILK STREET,SUITE 1500
DAVID L McLELLAN BOSTON,MA 02109
JAMES H.BARRON TELEPHONE:6171423-7770
TELEX:951131
CAROL C.MONACO
ROGER A.DUPONT
*Also Admitted in New Hampshire
September 9, 1985
North Andover Planning Board
120 Main Street
North Andover, MA 01845
Re:. Appeal of North Andover Planning Board Decision
Dear Sir/Madam:
Enclosed you will find a Notice of Appeal with a copy of the complaint
attached which commenced said Appeal . Please read it carefully as you are a
party defendant to this action as a member of the Board.
?rey,
PeCaruso
PJC:ls
Enclosures
D
SEP 91985
it
PLANNING BOAT
�1rC �Irt�
7 Jit I
+ T
sell
NOTICE OF APPEAL I
TO: North Andover Planning Board
120 Main Street
North Andover, MA 01845
DELIVERY IN HAND
Please take notice that on Monday, September 9, 1985, pursuant to Massachusetts
General Laws Chapter 40A, Section 17, MacMiff Development Corp. commenced an
action in the Superior Court, Essex County, Massachusetts, appealing the decision
of the North Andover Planning Board dated August 20, 1985, and filed with the
Town Clerk of North Andover on August 21, 1985, to deny the application of MacMiff
Development Corp. for a Special Permit for a common drive at 163-175 Salem Street,
North Andover, Massachusetts.
A copy of the Complaint commencing said appeal is attached hereto.
MacMiff Development Corp.
By its Attorney,
eter J. aruso
Caruso, ohen, McLellan & Barron
One Elm Square
Andover, MA 01810
(617) 475-6700
Dated: September 9, 1985
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1�L412tD
COMMONWEALTH OF MASSACHUSETTS ,
DEPARTMENT OF THE TRIAL COUR H1100".
Essex,SS °1�P � SIplPikaflurt
Civil Action
!. No.
MacMiff Development Corp. )
Plaintiff )
VS. )
Michael P. Roberts, ) Complaint
Paul A. Hedstrom, ) Pursuant to M.G.L. c40A s.1
John A. James, Jr. , )
` John J. Burke, and
1 Erich W. Nitzsche,
j As They Are All Members )
of The Planning Board )
of The Town of North Andover )
�I Defendants )
�! The Plaintiff herein invokes the provisions of Massachusetts General
;
i! Laws Chapter 40A, Section 17, as amended, and alleges the following:
j 1 . The Plaintiff, MacMiff Development Corp.(MacMiff) is a Massachusetts
Corporation with its usual place of business at 213 Broadway, Methuen, Essex
lCounty, Massachusetts and is an aggrieved party within the provisions of
�!, M.G.L. Chapter 40A, Section 17, as amended, as a re"It -of the decision of
the Planning Board of the Town of North Andover (Board) which voted to deny a
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petition for a special permit affecting the premises commonly known and
numbered as 163 Salem Street, North Andover, Essex County, Massachusetts
(Lot 1 ).
2. The Defendants are the duly constituted and regular members of the
Planning Board of the Town of North Andover, which is a Special Permit Grantin
Authority, and all reside in the Town of North Andover as follows:
Michael P. Robert 479 Waverly Road
CARUSJ. COHEN North Andover, Ma. 01845 -
G W-ELLAN
ATTORN YS AT4AW Paul A. Hedstrom 30 Oakes Drive
ONE E,'-,SQUARE North Andover, Ma. 01845
ANOOVE= MA01610
'617'''5.6700 John A. James, Jr. 132 Brentwood
North Andover, Ma. 01845
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John J. Burke 65 Hillside Road
North Andover, Ma. 01845
Erich W. Nitzsche 1253 Salem Street
North Andover, Ma. 01845
3. MacMiff purchased Lot 1 together with an adjoining parcel commonly
known and numbered as 175 Salem Street, North Andover, Essex County, Mass-
achusetts (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 and Lot 2 were
oneparcel .
5. In December of 1984 the Board endorsed a Plan of Land showing the
creation of Lot I 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. Said Plan No. 9710 showed a 20' wide driveway easement over Lot 1
for the benefit of Lot 2. Within this easement was also shown the then
currently existing drive to Lot 2.
7. On December 28, 1984 MacMiff conveyed Lot 2 to David P. Klemer and
Gayle D. Klemer (Klemer) by deed recorded in said Registry in Book 1910,
Page 243.
8. Said deed to Klemer contains a grant of a common driveway easement
over Lot l to the Klemer Lot, Lot 2.
9. Said deed to Klemer also contains, as a condition to the deed, an
Agreement that the Grantee, Klemer, and the Grantor, MacMiff and both their
assigns will be equally responsible for the maintenance of this common
driveway easement.
CARUSO.COHEN 10. This common driveway maintenance agreement is a requirement for the
5 McLELLAN
ATTORNEYS AT LAW granting of a Special Permit for a common drive under the North Andover
ONE ELM SQUARE
ANDOVER,MA 01810 Zoning By-Laws, Section 2, Paragraph 2.75 "Driveways".
(617)475-6700
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11 . On April 9, 1985 MacMiff filed an application to the Board for a
Special Permit pursuant to the Town of North Andover Zoning By-Laws, section
2, paragraph 75, for permission for a shared driveway to Lot I . Said
application is attached hereto and incorporated herein as Exhibit "A".
12. On June 17, 1985 the Board held a public hearing upon the application
noted in paragraph 11 above at which MacMiff presented evidence in support of
it's application.
13. On August 19, 1985 the Defendants as members of the Planning Board
denied MacMiff's application for the Special Permit requested in paragraph
11 above.
14. The board filed their decision in the Office of the Town Clerk on
August 21 , 1985. Certified copies of this decision and Notice of Decision
are attached hereto and incorporated herein as Exhibits "B" and "C".
15. Denial of this Special Permit by the Board on the grounds of a
decision of another town body, the North Andover Zoning Board of Appeals,
is not a condition under the Zoning By-Laws, and concerns an issue not before
the Board, and is based on a legally untenable ground.
16. Denial of this Special Permit by the Board on the ground that
MacMIff should have made provisions to service Lots 1 and 2 individually,
even after the Board was shown and approved Plan 9710 on which as easement
over Lot 1 was shown is unreasonable whimsical , arbitrary, capricious and
based on a legally untenable ground, as well as unfair and unequitable.
17. Denial of this Special Permit by the Board on the ground that there
is sufficient frontage on tot 1 is not practical , contrary to the evidence
and is unreasonable, whimsical , caprivious, arbitrary and a legally untenable
CARUSO.COHEN
ground.
6 MdFLLAN
ATTORNEYS AT LAW 18. Denial of this Special Permit by the Board on the ground that
ONE ELM SQUARE
ANDOVER,MA 01810 MacMiff has not demonstrated alternative access to Lots 1 and 2 and therefore
(6171 4756700
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MacMIff did not exercise the various options is false based upon the Board's j
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own record of the proceedings, is unreasonable, whimsical , capricious, and
arbitrary based upon the evidence presented to the Board, the topographical
features of the area and the safety factors and further is a legally
untenable ground.
19. The finding of the Board that the proposed common driveway is not
the only location or the most appropriate location for a driveway to access
onto Salem Street is unreasonable, whimsical , capricious, arbitrary and a
legally untenable ground based upon the evidence.
20. The finding of the Board that the use of this common access will
adversely affect the neighborhood when this actual access has already
existed and used for decades is unreasonable, whimsical , caprisious,
arbitrary and a legally untenable ground for denial .
21 . The finding of the Board that two driveway access points can clearly
be accommodated on both Lots l and 2 is not within the spirit, general
purpose, and intent of the By-Law and is unreasonble, whimsical , capricious,
arbitrary and a legally untenable ground for denial , and further fails to
consider that MacMiff does not own Lot 2.
22. The finding of the Board that the driveway will pose a nuisance
and hazard to vehicles, particulary vehicles converging at the proposed
common driveway, is not substantiated by evidence, is unreasonable, whimsical ,
capricious, arbitrary and a legally untenable ground for denial.
23. Based on the bove it is alleged that in denying said Special Permit,
the defendants, member of the Planning Board, exceeded their authority in
an unreasonable, whimsical , capricious, and arbitrary manner.
CARUSO.COMEN 24. In denying Special Permit the defendants, as member of the
y ng said Spec a
&McLELLAN
ATTORNEYS AT LAW Planning Board, further exceeded their authority in that they did not
ONE ELM SQUARE
ANDOVER.MA 01610 specifically find that thegranting of this Special Permit would not be in
(6 1 7)4 75-6 700
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harmony with the general purpose and intent of the Town of North Andover
Zoning By-Law.
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25. In denying MacMiff's request for a special permit, the
Board has effectively made it impractical or impossible to construct
a personal residence on Lot 1, although zoning for that Lot essentially
prohibits any other use.
26. In denying MacMiff's request for special permit, the
Board has exercised its zoning powers in such a manner, and to
such an extent, as to deprive the plaintiff's land of all practical
value, leaving the plaintiff with only the burden of paying taxes
on it. .
27. The Plaintiff, MacMiff, alleges that there is sufficient
evidence to warrant the granting of this Special Permit based upon
the grounds of the unique conditions of Lots 1 and 2, the current
ownership of Lots 1 and 2, the previous actions of the Board approving
the plan creating Lots 1 and 2, and all the evidence presented,
and that said members of the Planning Board exceeded their authority
and failed to follow the intent and purpose of the Zoning By-Laws.
WHEREFORE, the Plaintiff demands:
1. That the decision of the Planning Board for the Town of
North Andover in denying said Special Permit be annulled; and
2. That this Court enter a Judgment ordering the Planning
Board to grant said Special Permit; and
3. For such other relief as this Honorable Court may deem
equitable and just in the circumstances.
CARUSO,COHEN
&MCLELLAN'.
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ATTORNEYS AT LAW
ONE ELM SQUARE
ANDOVER MA 01010
(61 7)475-6700
MacMiff Development Corp.
Plaintiff
By its attorney
Peter J. a so
Caruso, Fohen, McLellan & Barron
One Elm quare
Andover, MA 01810
i'
(617) 475-6700
Dated: September 9, 1985
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CERTIFICATE OF SERVICE
i
I , Peter J. Caruso, Attorney for the Plaintiff, hereby certify
that I have given Notice of Complaint of the within matter by delivering,
in hand, to the Town Clerk of North Andover, Massachusetts, 120 Main
Street, North Andover, Massachusetts 01845, on this 9th day of
September, 1985.
I
e er Car s
Dated: September 9, 1985
CARUSO.COHrLN
6 MCL.ELLAN
ATTORNEYS AT LAW
ONE ELM SQUARE
ANDOVER.MA 01810
1617)<75-6700
FCCCIlED '
• pp.�tlCl �p'sC
TOWN OF NORTH ANDOVER xl`f I�l 71114
MASSACauSMs
PLANNING BOARD
APPLICATION FOR SPECIAL PERMIT
NOTICE: This application must be typewritten
-Applicant MacMiff. Development Corp. Address 213 Broadway, Methuen, Mass. '
I. Application is hereby made
(a) For a Special Permit under Section 2 ; Paragraph ?S of the Zoning lY-Law.
2. (a) Premises affected are lan _and buildings numbered 163 Salem
Street..
(b) Premises affected are property with frontage on, the North_ South_
Eget_ Kest . side of Salem Street, and kaYown as
No. Salem Street.
(c) Premises affected are in Zoning District R3 , ar:d tze premises affected
have an area of 98. 00 5 s.f. and frontage of1, 6.6?feet.
3. Ownership:
(a) Name and address of owner (if joint ownership, give all_names):
MacMiff Development Corpe
Date of purchaae_ SO/17/84 Previous owner William-4 Constance B. McAndree
(b) If applioant is not owner, check his interest in the promises:
Prospective purchaser
Lessee
.,Other (explain)
4. Size of proposed building: 64 front; 28 feet deep
Height: 2 stories; 2F `feet.
(a) Approximate date of erection MAY 19$5
(b) Occupancy or use (of each floor)
(o) Type of construction
5• Size of Existing Building; 12 feet front; 12 feet dee
Height: feet.
p
.
(a) Approximate date of erection Not known
(b) Occupancy or use (of each floor) Storage
This is a storage shed which will be removed
(c) n8na�
6. Has there been a previous application for a Special Permit from the Flaming Board
on these premises?
If so, when _
7. Description of purpose for which Special Permit is sought on this petition:_
To allow for a shared driveway -
(over)
rivewa -(over)
J
'Deed recorded in the Fecirtr; o: Dceds in Book EBF! Par7^ 115 or Land Court
Certificate No. — Book Page
9. The principal points upon which I base nay applioation are as follows: (must be
stated in detail)
A drive presently runs through the proporty to service the lot
abutting to the east. It is desired to construct a new drive off
of this to provide access for a new- homes This use ,will not be
detrimental to the area nor constitute a •hazard to vehicles or
pedestrians.
I agree to pay for advertising in newspaperd postage fee for mailing legal
notices to "Parties is int e s " 7-� -
Petitioner's simature)
L .
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 om manioation
purporting to be an application shall be treated as were notice of intention to.-Meek
relief until such time as 'it is made on the official application form. - All information
called for by the form shall be furnished 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 directly opposite on any public
__... ar 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 tai list, notwith–
standing that the land of any such owner is located in another city or Morn, the Plan–
ning Board of the town and the planning board of every abutting city or taxa.
LIST OF PARTIES IN I1fTEREST
NAME ADDRESS
MacMiff Development Corp. 213 Broadway, -M• thuen, Mass. 01844
David P. & Gayle D. Klemer 175 Salem St. , -Noe Andover, Masse 0184
Ridgew000d Cemetery Assoc. 2 Johnson St. , No. Andover, Mass. 0184
John We & Linda E. Parker 121 Salem St. , No. Andover, Masse 0184
Lewis J. & Beverly Me Jones 166 Salem St. , No. .Andover, Mass. 0184'
Edward Le .& Frieda G. Bjornson 151 Salem St. , No. Andover# Masse 0184
James E. & Ann W. Hamblet 137 Salem St. , No. Andover, Masse 0184
ADD ADDITIONAL SREETS, IF NDCESSART,
RECEtYfD. ,
MUN BDADD 4XIV ,T
-00jQL� OF NORTH ANDOVER
TOWNCLER SSACHUSETTS
NORTH ANI)OtP Any appeal shall be filed
AUG Z! 1124' AN I ",° ';�,o within (20) days after the
a; '' date of filing of this Notice
• in the Office of the Town
Clerk.
NOTICE OF DECISION
Date. . . . . .Au g u z t. .2.C1, .1985 . ....
4
Date of Hearing . . June. 1J.,..1985
Macbiff Develo ment Corporation
Petition of . . . .... .. . ... . . . .. .... . .....P. ... .. . . . . . . . . . . . . . . . . ... .. . . . ..
Premises affected . ... ..lb3 .Sglee.Street ... . . . .. . . . . . . . . . . .. . .N. . .. ... . ..
Referring to the above petition for a special permit from the requirements
N BYL W SECTION 2 75 '
of the . . . ... . . .. .; Px.� �. $.s..
SECTION ...
so as to permit . .. . .. .... . A .C91JAQN.DRIVEWAY .. . . . ... . . . . . . . . . . .. ..... ......
. .. . .. . .. . . .. .. . .. .... ... ....... ......... . .. .. .. . . . . . . .. .. . . ..... .........
After a public hearing given'on the above date, the Planning Board voted
to . . .DENY .. . .. ..the .SPECIAL PERMIT.. . .. . . . . .. . . . ... . . . . . . ..... ... ......
based upon the following conditions:
Signed
AT1IST.r
A'ha�a Copy - Mi.cb a�.1. .k.. Rab e r ts.s.Cha.izao a n
. Paul. A.-. .Heds.tsoin.,. .tiic�:.Chairman
o+ra Cuk
. .7.QbP. J ID Yrke . . . .. ... .......
Erich. 9% . 141A.7,40 . ... ...... .
' ' Planning Board
MUM8 Any appeal shat! be filed
RECEIVED within (20) days after the
DTOWAR11 �-F1lMtGN OF NORTH ANDOVER date of filing of this Notice
NORTH 4k VEJ A S SA C H U S E T T S in the Office of the Town
Z Clerk
I I 24 NORTh q
Auc I � X85
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August 19, 1985
AT M.
A 7hw awr
Mr. Daniel Long,. Town Clerk jair�
Town Office Building ' r
North Andover, MA 01845
ZYM CIS&
Re: MacMiff Development Corporation/Common Driveway
Special Permit for 163 Salem Street
Dear Mr. Long:
The North Andover Planning Board held arpublic hearing on
Monday evening, June 17•, 1985 at 8:00 p.m, --In 'the Town Office
Meeting Room upon the application of MecMiff• Development
Corporation. The hearing-was advertised Ia the North Andover
Citizen on May 23 , and 300 1985. The followfag members were _
present: Michael P. Roberts, Chairman•; Paul' &: Nedstromjr Vice-
Chairman; John A. James, Jr.. ; Clerk; Erich W. Nitzsche,• and John J.
Surke.
The petitioner seeks a special .permit- under Section_ 2 ,
Paragraph 2. 75 Driveways of the North Andover Zoning .Bylaw, which
requires a Special Permit for a driveway to service more than
one lot. The premises is known as 163- Salem -Street, 'Lot 1. The
lot is 'situated in a .Residential 3 (1-3) -zoning district,. and
contains an area of 961,005 square feet and frontage of 126. 67
feet.
At the hearing, Bill MacLeod, the project engineer made
the following presentation- 'at the public hearing.
- There is a driveway maintenance agreement ou 'Lot 2
for the benefit of Lot 1. It is blready recorded at
the Registry of Deeds.
- The. applicant does not want two curb cuts on Salem St.
- Lot 1 is not owned by Lot 2 owners (Clemens) . Construct-
ion of a new driveway on Lot 2 wound require a severe cut
through an existing knoll and take a mature tree.
t, -2-
The reasons for the petition are safety , aesthetic and
economic .
Discussion followed concerning: 1) the general use of
common drives and if there is any merit to this application in
particular. 2) What, if any, alternative access could be pro-
vided if a common drive was not used. The engineer indicated
alternative access is possible , however, this proposal provides
the -best access .
The following members were present 'and voting at the
August l:% 1985 meeting when the board .-gendered their decision:
Michael P. Roberts, Chairman; Paul A. Hedstrom, Vice-Chairman;
John A. James, Jr. , Clerk; Erich W. Nitzsche.
MOTION: By Erich Nitzsche to deny the petition for a Special Permit.
SECOND: Paul A. Hedstrom.
VOTE: Three in favor-of the motion, one against (John James, Jr.) to deny
the petition for a Special Permit to allow for a common driveway
on Lots 1 6 2 Salem Street, based on the following:
1 . The applicant has not demonstrated alternative
access to Lots 1 and 2 and has therefore not
exercised the various options.
2 . There is sufficient street frontage on Lot 1 to
provide an individual driveway to service the pro-
posed dwelling without- modifying the existing drive. ,
3 . Lot 1 and 2 was originally one lot. Under the
Approval Not Required Plan process 2 lots were
created. The endorsemebt of the signed plan. by the
Planning Board did not indicate the future pproval
of a common driveway proposal. The applicant was
aware .this condition existed prior to purchasing _
said lot. Provisions should have been made to
service each lot individually.
4 . The North Andover Zoning Board of Appeals has
issued' s written Special Permit denial of the
proposed house construction on Lot 1 due to its .
proximity to a tributary in the Lake Cochicbew3ck
Watershed. A change in house size or location
would require modification of the driveway plan.
In denying this Special Permit request, the Planning Board*
pursuant to Section 10. 31 - Conditions for Approval of Special
Permits of the Zoning Bylaw, find the following:
IL
a) The proposed common driveway is not the only location
or the most appropriate location for a driveway to
access Onto Sal.em Street;
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b) The use as a common access will adversely affect the
neighborhood due to its relative placement on Lot 1 .
Two driveway access points can clearly. be accommodated
on both lots.
c) The driveway will pose a nuisance and hazard to vehicles',
particularly vehicles converging at the proposed common
driveway.
Based on site visits , the public hearing process , and
testimony from town boards and departments, the proposed common
driveway is not in harmony with the general purpose and intent
of the Town' s Zoning Bylaw, specifically, Section 2 .75.
"A way located on a lot which provides vehicular access
to the buildings on the lot. 'Each driveway shall ser-
vice no more than one lot. Subject to the granting of
a Special Permit from the Planning Board, a driveway
may be shared by not more than three (3) lots."
Sincerely,
PLANNING BOARD ,tet
Michael P. Roberts
Chairman
MR:KN:ns
r
cc: DEQE
Fire Chief
Highway Surveyor
Public Works
Conservation Commission
Police Chief
Board of Health
Building Dept. .
Applicant
Engineer
File
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CARUSO, COHEN, McLELLAN & BARI ONO "" LONG
TOWN CLERK
ATTORNEYS AT LAW NORTH ANDOWR
ONE ELM SQUARE
ANDOVER,MASSACHUSETTS 01810 vw•�p n 4 24 Meg '
GERALD M.COHEN* 617/475-6700 BOSTON OFFICE:
PETER J.CARUSO 50 MILK STREET,SUITE 1500
DAVID L McLELLAN BOSTON,MA 02109
JAMES H.BARRON TELEPHONE:617/423-7770
TELEX:951131
CAROL C,MONACO
ROGER A.,DUPONT
"Also A®mitW in New Hampshire
July 22, 1985
Town Clerk
North Andover, Massachusetts 01845
Re: MacMiff Development Corp.
Petition No. 34 - 85
Dear Sir:
Enclosed pursuant to M.G.L. Ch. 40A s. 17 is a copy of a Complaint
filed in Essex Superior Court, the Defendant being the Town of North
Andover Planning Board.
Sincerely,
Peter J. Caruso
PJC:dp
Enclosure
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT
CIVIL ACTION NO.
WILLIAM S. MAC LEOD, )
and )
DOUGLAS MIFFLIN, )
and ,
MAC MIFF DEVELOPMENT CORPORATION )
Plaintiffs ) COMPLAINT
VS. ) (M.G.L. c.40A s. 17)
TOWN OF NORTH ANDOVER )
ZONING BOARD OF APPEALS, )
FRANK SERIO, JR. , CHAIRMAN, )
ALFRED E. FIRZELLE, ESQ. , )
AUGUSTINE NICKERSON, WILLIAN }
_SULLIVAN, AND WALTER SOULE )
Defendants )
The Plaintiffs herein invoke the provisions of M.G.L. c.40A s.17 and
represent to the Honorable Court the following:
1 . Plaintiff William S. MacLeod resides at 231 Broadway, Methuen,
Massachusetts.
2. Plaintiff Douglas Mifflin resides at 32 Morton Street, Andover,
Massachusetts.
3. Plaintiff MacMiff Development Corporation at 231 Broadway, Methuen,
Massachusetts.
4. The Defendants are the Town of North Andover Zoning Board of Appeals,
Town Hall , Main Street, North Andover, Massachusetts; Frank Serio, Jr. ,
Chairman, Alfred E. Frizelle, Esqure, Vice Chairman, Augustine Nickerson,
William Sullivan, and Walter Soule.
5. The above named Plaintiffs are aggrieved by the decision of the
North Andover Zoning Board of Appeals denying a petition for a Special
Permit for 163 Salem Street, North Andover, Massachusetts.
6. A copy of the decision is appended hereto as Exhibit "A".
7. The decision appeal from was made by the North Andover Zoning Board
of Appeals on July 2, 1985, and filed with the North Andover Town Clerk
on July 2, 1985.
8. The decision was the result of a unanimous vote of the Zoning Board
of Appeals after public hearing of a plan submitted by Walter S. MacLeod of
MacMifff Development Corporation.
CARUSO,COHEN 9. The Plaintiffs allege that the said decision exceeds the authority
&MCLELLAN of the Zoning Board of Appeals for the Town of North Andover, and further
ATTORNEYS AT LAW states that they are aggrieved by the acts of said Board.
ONE ELM SQUARE
ANDOVER,MA 01610 10. Proposed plan was submitted and recorded prior to and before any mora-
(61"n 475-6700
ora-(6171475-6700 torium on development in the town of North Andover.
11 . Construction has been approved by other town administrative bodies
such as the Conservation Commission and the Board of Health.
12. Construction as presented to the Board of Appeals was the only
reasonable alternative to build on said land.
13. Said proposed construction is within excepted industry standares,
was prosposed for the least amount of distrubance on said lot, and had
sufficient siltration controls to eliminate possible damage to bording lands
and wetlands.
14. The Board of Appeals decision was not in accordanace with the
ciriteria for usch as set forth by regulation, by-law, and statute, in
particular violating the letter and spirit of the I*W.
WHEREFOR, the Plaintiffs demand:
1 . A djugment of this Court that the decision of the North Andover
Zoning Board of Appeals be annulled.
2. In the alternative, a judgment of this Court ording the Zoning
Board of Appeals to approve said Special Permit.
WILLIAM J. MAC LEOD
DOUGLAS MIFFLIN
By Their Attorney
Pe er J.
One Elm Squire
Andover, Ma. 01810
Dated: July 22, 1985
CARUSO,COHHN
&MCLEULAN
ATTORNEYS AT LAW
ONE ELM SQUARE
ANDOVER.MA 01610
(617)475.6700
RECEIVED
$ DANIEL LONG
TONIN CLERK
AMILT" em NORTH ANDOVER
�y
CH
Any
l �u� � 4 ox MIS
appeal shall be filed �.'"
-
- within (20) days after the TOWN OF NORTH ANDOVER
MASSACHUSETTS
date of filing of this Notice
SE S
In th6 Office of the town
Clerk. BOARD OF APPEALS
NOTICE OF DECISION
Date . . . July. . . . 19$5. . . . . . . . . .
Petition No.. . . .85
Date of Hearing. .June 10�. .19$5
. . . . . . . . . . . . . .
Petition of . . . .MacMJff. Development. Gcrp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Premises affected . . . . .1.63. .Salsm• .St... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Referring to the above petition for a Special: Permit
Sic.. .4.•.133
. ... . . . . . . . . . . . . . I . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . .
so as to permit _ . . . . con0rudtio4. with. n:.1.pQ .#'t.. .of.tributary-to. lake .. . . .
Cochi.cliewick
After a public hearing given on the above date, the Board of Appeals voted to .IDeny. . . . . . the
Special Permit
. . . . . . . . . vad hereby-a-alhat_a iR$,l;,epeeto; ta
Iter . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
for. this ea rFinn of the ah^%W gunk. Ised-eP" 4--1-e-fc 10;wug.caudiLiaaw
Signed
Frank Serio Jr. Chairman
. . . . . . . . . . . . . I . . . . . . . . . . . . . . . . . . . . . . . . . . . .
, .Alfred, .F.. .Fr zelle. .Eeq .Vic e. .Ohairman
William. Suii�van. . . . . . . . . . . . . .
Wa It er. . S.oul.e . . . . . . . . . . . . . . . . . . .
. .
Board of Appeals
RECEIVED
DANIELlit.[.+1I.CDi4G
T
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JUL 58
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TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
July , 1985
MacMiff Development Corp.
163 Salem Street
Petition No. 3� - 85
Mr. Daniel Long, Town Clerk
Town Office Building
North Andover, MA 01845
Dear Mr. Long:
The Board of Appeals held a public hearing on Monday evening, June
10, 1985 upon the application of MacMiff Development Corporation.
The hearing was duly advertised in the North Andover Citizen- on
May 23, and May 30, 1985, and all abutters were notified by regular
mail. The following Board members were present at the public hear-
_ing and again on June 26, when the Board rendered its decision-.``
Frank Serio, Jr. , Chairman; Alfred E. Frizelle, Esq. , Vice-Chairman;
Augustine Nickerson, William Sullivan, Walter Soule.
The Petitioner seeks a Special Permit under Section 4 .133 of the
Zoning By-Law so as to permit the construction of a single-family
dwelling within 100 feet of a tributary to Lake Cochichewick on
the premises located at the south side of Salem Street, known as
163 Salem Street.
Mr. William MacLeod appeared on behalf of the Petitioner and test-
ified that perculation tests were approved by the Board of Health
and the Conservation Committee issued a negative determination.
The Petitioner looked at alternatives, but they were not acceptable.
There is no town sewer.
Speaking in opposition were Mr. James Hamblet, Mrs. Gail Klener,
Mrs. Constance McAndrew; and Mrs. Burenson. In summary, the oppo-
sition expressed environmental concerns for Lake Cochichewick.
Upon a motion by Mr. Frizelle, seconded by Mr. Sullivan, the Board
voted unanimously to deny the Special Permit as requested.
a
l
The Board .finds that the provisions of Section 10.31 were not
satisfied, specifically, that the site is not appropriate be..
cause of the lack of, a town sewer. The provisions of Section
4.133 (1) also were referenced #nd the grant of the permit
Would not protect the public health and- welfare. The Board al-
so took note of the action of Town Meeting, prohibiting construc-
tion around the Lake and the pending study of the Lake.
Sincerely,
BRD OF APPEALS
F nk Serio 1�r. Chairman
AEF/kdp
r
Oversized Maps on file with the Town