HomeMy WebLinkAboutMAYNARD, JAMES r/
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OFFR`.ES OF: Town of „ „,, 120 Main Street
APPEALS <: NORTH ANDOV�� ,.< F North Andover.
BUILDING b - �` _ 3 Massachusetts 01845
CONSERVATION `"jg6 DIVISION OF !0`i) ,; �w R (617)6854775
HEALTH µ0r'
PLANNING PLANNING & COMMUNITY DEV LQP�T
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i
KAREN H.P. NELSON, DIREC TOR
April 13, 1987
Town Clerk, Daniel Lang
120 Main St.
North Andover, MA 01845
Re: Approval Not Required Plan
Plan of Land in No. Andover, MA
dated March 30, 1987
Owner: James Maynard
Dear Mr. Long:
The purpose of this letter is to formally notify you of the action of
the Planning Board regarding the above referenced Form A application and
associated plan.
Due to the fact that the plan prepared by Cyr Engineering is not a
result of a field survey, there is no change in lot lines, setbacks of
existing structures are lacking, road width missing, abutters not included,
bearings and distances as required are inadequate. Overall, the plan as
submitted shows insufficient information.
At the April 6, 1987 Planning Board meeting, the board determined
that the plan does not need Planning Board signature. The plans are to be
returned to the applicant unsigned.
Sincerely,
For theannin
Erich W. Nitzsche
Chairman
E{NAn
c
James Maynard, Trustee
740 Main St.
Waltham, MA 02154
FORM A
APPLICATIGK FOR ENDMSEMT OF PLAN
N1 Qr ;aJER BELIEVED NOT TO R4WIRE APPROVAL
' 'lHn 3 f•'J+ i � 'V li.l � � rlly.ft .t J�.-�.. y. .^ `tl t• !-': 1 . f.J .fy � • i , Q j�
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To the Plaquing ,Board at the Town of North Andoveri
i
The undersigned wishes.to recard3he 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 auch approval'-is' not required for the,following reaeone
1. The division of laud shown an the acoompagying plan is not a subdivision because
every lot shown thereon has the amount of Frontage required by the North Andover
Zoning IV-mow end is nun public ways zamelT, Chestnut Street, Salem
Turnpike '&' Min Road' or a private ways namely,
being land bounded as follows$
Northeasterly by 'Chestnut Street,
Southwesterly by Salem Turnpike, and
Northwesterly by Mill Road.
-2. The division of land shown on the accompanying p;an is not a subdivision for the
following reasons:
_i
3. Title reference North Essex Deeds, Book R_ T i page • 1 3 1 „i or certificate
of Title No. 1 Registration Bock ......... page. -._..,_.. f
Received by Town Clerks
Chestnu Green Realty Trust, -
Date: APPlicantl eignatu
• « �CCsGG�'
B
Time: ,Maynard ,- , stee -
A Plic a addresi� ' • 146 lar Street. �...
Signatures Y Waltham, MA 02154
Owner's signature and address if not the applicants
•_ply
Notice to APPLICANT/TOWN CLERK of Action of PlwMing Board on Accompanying Plan,
1. 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 upga the same..
2, , The North Andover Boad has determined that said plan shows a
subdivision, as' defined by C.L., a* 41, s, 81-7., and must therefore be
re—submitted to it for approval under the Subdivision Control Law.
Very truly yours,
NORTH ANDOVER PLANNING BOARD
_ _._ ....- _ . By.
Date:
RMA
TG'f. it APPLICATION FON ENDORSEASENT OF PLAN
Fr a" " `'; R BELMW NOT TO REQUIRE APPROVAL
i ' .,. 7l ' .. .a� may'{:�yl i4•!til .y S:S,.1)ka •,, ! i• •`. .,' :.1. .
To the Plauning,Board of the Totes of North Andovers
The undersigned wishes.to record the aoaompanyi•ng Plan and requests a determination
by said Board that approval l)y it under the Subdivision Control Law is not required.
The undersigned believes that suoh'appraval' is n6t required for the,following reasons
1, The division of land shown on the a000mpa;Wing plan is not a subdivision because
every lot shown thereon has the amount of frontage required by the North Andover
Zoning By—Law and is on a publio wq, aamly, Chestnut Street, Salem
Turnpilt�e `& Ki 11 Road'` " ' or a private ways a4"40
being land bounded ast followai
Northeasterly by 'Chestnut Street,
Southwesterly by Salem Turnpike, and
Northwesterly by Mill Road.
,2. The division of land shown on the aoaompsnyieg peau is not a subdivision for the
following reasons:
3. Title referenoe North Essex Deeds,. Book P�_ r Wp, 11 Page i or Certitirate
of Title No. , Registration Hook ,„",,,, j Paga: ._��r
Received by Town Clerk:
S Chestnu Green' Realty Trust,
Date: Applioant' signatu dfe
�---
Time; a a see
e.
APphic s addres 74jj. Stre .
Signature: Waltham, MA 02154
-Owner's signature and address if not the applicant;
r
Notice to APPLICANT/TOWN CLERK of Aotion of Planhing Board on A000mpanying Plan.
1. The North Andover Planning Board has determined that said plan does not require
approval under the Subdivision Control Lax, and the appropriate endorsement has
i` been made upon the same.. r:T,
2. The North Andover Planning Board has determined that said plan shows a
subdivision, as' defined•by G.L. ce 41, at and and must therefore be
re-submitted to it for approval under the Subdivision Control Lax.
I
Very truly yours,
NORTH ANDOVER PLANNING BOARD
Date:
I __
WILLIS and WILLIS
ATTORNEYS-AT-LAW
160 PLEASANT STREET
NORTH ANDOVER, MASSACHUSETTS 01845
JOHN J. WILLIS TELEPHONE 685-3551
JOHN J. WILLIS, JR.
April 21, 1987
Daniel Long, Town Clerk
Town Hall
North Andover, MA 01845
RE: FORM A PLAN OF JAMES MAYNARD
PROPERTY LOCATED AT: TURNPIKE STREET,
MILL ROAD AND CHESTNUT STREET
FILED: MARCH 31, 1987
i
Dear Mr. Long:
Enclosed you will find a certificate which I would
have you execute concerning the above-captioned Plan. You
will note that the Plan was filed on March 31, 1987, and
no action has been taken by the North Andover Planning Board
in connection with whether the Plan does, or does not,
constitute a subdivision under the Subdivision Control Law
for the Commonwealth of Massachusetts.
Under the laws of the Commonwealth of Massachusetts,
M.G.L. , Chpt. 41, Sec. 81P, no action so having been taken,
a certificate shall issue from the Town Clerk to that effect
so that I may record the plan with the appropriate Registry
of Deeds.
Hoping you will have no difficulty with this request,
I remain,
S ncere
Wi i r.
to ney r ames P. Maynk
JWJR:psw
Enclosure
CERTIFICATE UNDER M.G.L. , CHPT. 41, SEC. 81P
BY THE TOWN CLERK FOR THE TOWN OF NORTH ANDOVER, MA
Now comes DANIEL LONG, as he is the Town Clerk for the
Town of North Andover, and certifies as follows:
1. The certain plan entitled "Plan of Land in North
Andover, MA, Scale: 1"=40 ' Dated: March 30, 1987, Hayes
Engineering, Inc. , Civil Engineers & Land Surveyors, Owner:
James Maynard", was filed with the North Andover Planning
Board on March 31, 1987 as a plan "believed not to require
approval of the Subdivision Control Law".
2. A period in excess of 14 days has elapsed since
the, submission of said Plan and no action has been taken by
the North Andover Planning Board in regard to a determination
"that approval under the Subdivision Control Law is not
required".
Signed and sealed under the pains and penalties of
perjury this day of April, 1987.
Daniel Long, Town Clerk
Town of North Andover, MA
COMMONWEALTH OF MASSACHUSETTS
Essex, ss. April , 1987
Then personally appeared the above-named, DANIEL LONG,
Town Clerk for the Town of North Andover, and swore to the above
to be true.
Before me,
Notary Public
My commission expires:
WILLIS and WILLIS
ATTORNEYS-AT-LAW
180 PLEASANT STREET
NORTH ANDOVER; MASSACHUSETTS 01845
Daniel Long, Town Clerk
Town Hall
North Andover, MA 01845
pEC „:'L j
RUDOLPH, ANDREWS & KRONER DANT:
-c
Attorneys at Law T0'P",; ' <.K
NORT;; 'n9U"VER
Sw f-Hove CENT ,u,STRW
Poff 0"Im Box 238 JAN 9 3 31 PM '87
GEORGWOVIN,AAA38ACHUMM 01833
Ro"n P.RUDOLPH
RoMrr&ANDREM 1BEPHONB
M CAUM.E.KaoNM (617)352-8111,352-60M
January 9, 1986
Clerk
Town of North Andover
120 Main Street
North Andover, Massachusetts 01845
Re: Kellner v. Maynard, Trustee, etals
Dear Clerk:
Enclosed please find for filing Complaint, Notice of Appeal, Certificate
of Service and attachments in regard to the above entitled matter which were
filed with the Superior Court this day. Kindly file same.
Thank you for your courtesy.
Ver o
Robert
RPR/kas
Enclosures
TYPE OR USE BALL POINT PEN—BEAR DOWN FIRMLY
MASSACHUSETTS TRIAL COURT SUPERIOR COURT DEPARTMENT
CIVIL ACTION COVER SHEET
Essex 88. (To be filed with each Complaint) NO.
PLAINTIFF($) DEFENDANT(S)
Helen Kellner James P. Maynard, Trustee, etals
ATTORNEY(S) (Firm Name, Address,Tet.) ATTORNEY(S)(if known)
Robert P. Rudolph, Esqurie, Rudolph, Andrews
& Kroner, 64 Central Street, Georgetown, MA
Boo# 01833
Place an®in one box only ORIGIN
w
[11. F01 Complaint ❑ 4. PO4 Dist.Cl.Appeal 0.231,s.97
❑ 2. F02 Removal to Sup, Cf.0.231,4.104 ❑ 6. F05 Reactivated after Rescdpt;Relief
❑
S. FOS Retransfer to Sup.Ct.0.231,8.1020 from judgmentilorder(mass.R.Cb.P.90)
Place an;®M one box only, NATURE OF ACTION
CONTRACT REAL PROPERTY MISCELLANEOUS
❑ A01 Services, labor and materials ❑ C01 Land taking (eminent domain) ❑ E02 Appeal from administrative agency.
❑ A02 Goods sold and delivered 12 CO2 Zoning appeal,G.L.c.40A G.L.c.30A
❑ A03 Commercial paper ❑ CO3 Dispute concerning title ❑ E03 Action against Commonwealth nr
58
[3AO8 Sale Or lasso of real estate L] C04 Foreclosure of mortgage Municipality,G.L.
El A99 Other(specify) C] C99 Other(specify) ❑ E04 Taxpayer suit,G.L.c 0.4.40 4.53
❑ E05 Confirmation of arbitration awards,
G.L.0.251
TORT
EQUITABLE REMEDIES ❑ Eoe Massachusetts Antitrust Act,
❑ BO Motor vehicle negligence-personal ❑ p01 Specific performance of contract G.L.c.93
Injury/property damage ❑ EBB Appointment of receiver
❑ 8
0 Other negligence-personal Injury ❑ D02 Reach and apply,G.L.x214, ❑ E09 General contractor's surely bond,
property damage s•3(6)-(9i G.L.0.149,ss.29,29a
' ❑ BO$ Products liability Q DOB Contribution or Indemnification ❑ Eto Summary process appeal
❑ Boo Malpractice-medical ❑ D07 Imposition of trust ❑ Ell Workman's Compensation
Q Bot' Malpractice-other ❑ DOB Minority stockholder's suit ❑ E12 Small Claims Appeal
(specify) ❑ D10 Accounting ❑ E13 Labor Dispute
Q BIiB Wrongful death, G.L. 0:229,s.2A ❑ 012 Dissolution of partnership ❑ E14 Chapter 123A Petition—SDP
❑ 810 Defamation (libel-slander) ❑ D13 Declaratory Judgment,G.L.o.231A ❑ E15 Abuse Petition,G.L.c.209A
Q 008 Other(specify) ❑ 099 Other(specify) ❑E16 Auto Surcharge Appeal
❑ E17 Civil Rights Act,G.L.c.12,ss.11H-/
❑ 00 Qatar(spew')
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 statement,where appropriate, will result in transfer of this action (Superior
Court Rule 29(2).
810 URE OF ATTORNEY OF RECORD DTE:
(OPPICIE USE ONLY—DO NOT WRITE BELOW THIS LINE) RECEIVED
DISPOSITION 0Y:
A. Judgment Entered B. No Judgment Entered DATE:
❑ 1. Before jury trial or non-jury hearing ❑ e. `Transferred to District Court DISP ENTERED
❑ 2. During jury trial or non-jury hearing under G.L.0.231,s1112C
❑ 3. After Jury verdict BY:
❑ 4, After court finding DATE:
❑ 5. Aller poet trial motion Disposition data
CLERK'S OFFICE COPY
m1c003-07/84
6
RE Un E!"'fr
TC0 t .. K
wT14o CNER
COMMONWEALTH OF MASSACONE f TS3 31 M
'10
ESSEX, SS. SUPERIOR COURT
DOCKET NO.
HELEN KELLNER, )
Plaintiff )
VS. ) NOTICE OF APPEAL FROM GRANT AND
APPROVAL OF SPECIAL PERMIT AND
JAMES P. MAYNARD, TRUSTEE) VARIANCE UNDER GENERAL LAWS
MAYNARD REAL ESTATE, ) CHAPTER 40A SEC. 17
TRUST; FRANK SERIO, JR. , )
CHAIRMAN, ALFRED E. )
FRIZELLE, WILLIAM J . )
SULLIVAN, AUGUSTINE W. )
NICKERSON, WALTER F. )
SOULE, ANNA P. O'CONNOR, )
RAYMOND A. VINENZIO, as }
members of the Board of )
Appeals of the Town of )
North Andover, )
Defendants)
Notice is hereby given that Helen Kellner the above named
plaintiff hereby appeals the decision and approval of the Board of
Appeals of the Town of North Andover of the variance and Special
Permit of James P. Maynard, Trustee Maynard Real Estate Trust on
November 18, 1986 and filed with the Town Clerk on December 22 ,
1986 (The complaint is hereby attached and made a part hereof) .
Which Appeal has been filed and entered int he Essex Superior Court
on January , 1986 .
Dated: January � , 1987 -
Robert 4chusetts
uire L
RUDOLPH, NER
64 Centra
Georgetow01833
Tel: ( 617 ) 362-8111
i6
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT
HELEN KELLNER, }
Plaintiff )
)
VS. }
COMPLAINT and APPEAL UNDER
JAMES P. MAYNARD, TRUSTEE) GENERAL LAWS CH. 40A SEC. 17
MAYNARD REAL ESTATE, )
TRUST; FRANK SERIO, JR. , )
CHAIRMAN, ALFRED E. )
FRIZELLE, WILLIAM J. )
SULLIVAN, AUGUSTINE W. }
NICKERSON, WALTER F. )
SOULE, ANNA P. O'CONNOR,
RAYMOND A. VINENZI09 as }
members of the Board of )
Appeals of the Town of )
North Andover, }
Defendants)
1 . The Plaintiff Helen Kellner is the owner of a single
family dwelling located at 920 Turnpike Street, North Andover, and
is an abutter and a person aggrieved by the decision of the Board
of Appeals of the Town of North Andover dated November 18, 1986 .
2 . The Defendants Frank Serio, Jr. , Chairman, 250 Hillside
Road, Alfred E. Frizelle, 131 Appleton Street; William J. Sullivan,
405 Salem Street; Augustine W. Nickerson, 100 Moody Street; Walter
F. Soule, 70 Raleigh Tavern Lane; Anna P. O'Connor, 88 Martin
Avenue; Raymond A. Vinenzio, 11 Appledore Lane, are the duly
constituted regular and alternate members of the Board of Appeals
of North Andover, and all reside in the Town of North Andover.
3 . The Defendant, James P. Maynard, Trustee, Maynard Real
Estate Trust has a usual place of business at 740 Main Street,
Waltham, Massachusetts , petitioned the North Andover Board of
Appeals for a special permit and a four variances on October 23,
1986 to remove an existing residence and construct a commercial
building and use the premises for a commercial day care center of
approximately 125 children with 22 staff members.
Count I
4 . In a decision dated November 18, 1986, and filed with the
Town Clerk on December 22, 1986, the Board of Appeals granted a
Special Permit under Section 4 . 121 Paragraph 19 of the North
Andover Zoning Board, on a petition submitted by the Defendant,
James P. Maynard, Trustee, Maynard Real Estate Trust dated October
23, 1986 . A copy of the decision is annexed hereto as Exhibit "A"
and made a part hereof.
5 . On November 18, 1986 the members of the Board of Appeals
of the Town of North Andover held a hearing to consider not only
the Special Permit but all four variances. There was opposition
from the Planning Board, the Town Planner, abutters and several
residents in the same immediate zone area. The criteria for the
granting of the Special Permit and the conditions for approval are
contained in the Zoning By-Laws Sec. J0. 3 ( 1 ) . The criteria for
obtaining a variance are contained in M.G.L. Ch. 40A Sec. 10 and
the Zoning B -
y Laws 10.4. The criteria are distinctly different and
therefore the hearing for Special Permit using the criteria and
evidence for supporting variances is in violation of the Zoning
statutes and by-laws.
6. The members of the Board of Appeals of the Town of North
Andover have exceeded their authority in granting the Special
Permit because they failed to comply with the Chapter 40A Sec. 9
which requires that Special Permits be issued subject to the
provisions of the by-law, specifically Section 10. 31 ( 1) a-e of the
Zoning By-Laws for the Town of North Andover. Evidence was
submitted at the hearing that the location was unsafe for use as a
commercial day care center because of its location adjacent to a
heavily traveled highway and inadequate accessibility from Chestnut
and Mill Street. No conditions or provisions were made for
adequate or appropriate facilities. No conditions or provisions
were made for the serious hazard to the children during their
outside play or during the period when they were picked up or
dropped off in regard to their safety and danger to other traveling
vehicles. No conditions or provisions were made regarding the
control of the children, the hours of operation, parking
facilities, playground facilities, traffic patterns, egress and
ingress, building plans, handicap requirements, hospital or medical
facilities, alarms or fire apparatus,; adequate fences, pedestrian
control and the many other provisions which would attend the care
and custody of small children not unlike a public school.
7 . The Board of Appeals failed to consider the evidence
submitted by the neighborhood regarding the adverse impact to the
residential zone and specifically related to but not limited to the
conversion of a residence to a commercial use. They also failed ,to
consider the enormous safety hazard created by the new use in a
residential neighborhood and did not provide safety conditions in
violation of the Zoning By-Laws 10.31.
COUNT II
8. In a decision dated November 18, 1986 , and filed with the
Town Clerk of the Town of North Andover on December 22, 1986, the
Board of Appeals granted four variances of Section 7 Paragraph 7 . 3
of the Zoning By-Law and Table two on a Petition submitted by the
Defendant, James P. Maynard, Trustee, Maynard Real Estate, Trust.
A copy of the decision is annexed hereto as Exhibit "A" and made a
part hereof.
9 . On November 18, 1986 the members of the Board of Appeals
of the Town of North Andover held a hearing to consider not only
the Special Permit but all four variances. There was opposition
from the Planning Board, the Town Planner, Abutters and several
residents in the same immediate zoned area. The criteria for
obtaining a variance are contained in M.G.L. Ch. 40A Sec. 10 and
the Zoning By-Laws 10. 4 . The criteria are distinctly different and
therefore the hearing for variance using the Special Permit and
evidence supporting a Special Permit for approval is in violation
of the Zoning statutes and by-laws. The criteria for the granting
of the Special Permit and the conditions for approval are contained
in the Zoning By-Laws See. 10. 3 ( 1 ) .
10 . The granting of a variance to change the setback
requirements from Route 114 exceeded the authority of the Board of
Appeals since this setback requirement is consistent with _state
policy regarding a public highway and is based on the safety of the
traveling public including the ceitizens of North Andover.
Modification of this , setback on Route 114 could and would mean an
erosion of the entire policy and an unnecessary risk. If a Special
Permit of use is granted to provide for the care and custody of
small children an even more unsafe and dangerous condition would
be created in violation of the criteria contained in M.G.L. Ch. 40A
Sec . 1A and also the specific criteria contained in Sec. 10 cif
Chapter 40A.
11 . The Board of Appeals further exceeded it authority in
granting inducing setbacks on both Mill and Chestnut Street below
the necessary 30 feet as shown in table 2 (attached hereto and made
a part hereof as Exhibit "B" ) for the applicable residential zone,
namely R-2. The Board authorized a 50 percent reduction on both
Mill and Chestnut Streets seriously deviating from the Zoning By
laws
1 s without justification. There is an existing residential
building on the premises would more nearly comply with the setback
requirements authorized by the zoning by-law.
12 . The Board of Appeals exceeded their authority in failing
to to find or substantiate the criteria contained in Chapter 40A
Sec. 10, particularly evidence of substantial hardship. The only
evidence submitted was that of a financial loss conditioned on the
fact that the present home were removed which is self created
hardship. The evidence abd fubdubgs are restricted to the
profitability of the sale of the lot. The Zoning by-law created no
hardship since the lot is owned and occupied as a residence and can
be sold as .a residence. Further, this use conforms with the zone
and characteristics of the neighborhood. The size of the project
mainly creates the basis for the variance. This is entirely within
the control of the petitioner. The new use of the land is also
controlled by the petitioner.
13 . The Board of Appeals granted the variances contrary to
the interest of the abutters, the neighbors, the Zoning Statute,
the Zoning By-laws, the Planning Board, the Town Planner and
without satisfactory conditions or safeguards and in excess of
their authority.
WHEREAS, the Plaintiff requests this HonorableCourt to
1 . Hear all the pertinent evidence and determine the facts ;
2 . Determine and adjudge that the decision of the Board of
Appeals approving the Special Permit requested by James P. Maynard,
Trustee, Maynard Real Estate Trust on October 23 , 1986 was
erroneous in law and fact and exceeded the Board's authority;
3 . Determine and adjudge that the decision of the Board of
Appeals approving the variance requested by James P. Maynard,
Trustee, Maynard Real Estate Trust on October 23, 1986 was
erroneous in law and fact and exceeded the board's authority;
4 . Annul the decision of the Board of Appeals granting the
,Special Permit;
5 .. Annul the decision of the Board of Appeals granting the
variance;
6 . Grant such further relief or justice as equity may
require.
AobertP.
mit ed,
Dated: January , 1987
, Esquire
& KRONER
64 Central Street
Georgetown, MA 01833
Tel (617 )352-8111
r77zS
y t 4 f }
TABLZ 2
SUMKWW OF DIMENSIONAL RRWIREMENTS
Res. Res. Res. Res. Res. Bus. Bus. Rus. Bus. Gen. Ind. Ind. Ind. Ind.
1 2 3 4 567 1 27 3 4 Bus. 1 2 3 S
Lot Area- 65.340 43,560 25,000 12,500 43,5608 25,000 25.000 120.000 80,000 25.000 60,000 80.000 435,600 50,000
Min. S.F.
Height 35 35 35 35 35 35 35 35 60 45 55 .55 55 53
Maximum (ft.)
street From- 175 ISO 125 100 150 125 125 300 200 125 ISO ISO ISO 150
tags-Minimum
(ft.)
Front set- 30 30 30 308 30 30 25 100 SO 25 50 SO 10010 30
back Minimum
(ft.)
Side set- 30 30 20 15 25 202 252 503 503 252 503 503 20010 202
back Minimus
(ft.)
Rear sett- 30 30 30 30 30 302 302 503 5o 352 503 503 20010 302
back Minimus
(ft.)
Floor Area H/A N/A N/A N/A 0.7511 0.30:1 0.75:1 0.40:1 1.5061 H/A 0.50sl 0.5061 0.5081 0.5061
Ratio-Maximsa,
Lot Coverage N/A N/A N/A N/A 201 308 351 301 251 351 351 356 35611 351
Maximum
Dwelling unit H/A H/A N/A H/A Multi-family=N/A N/A N/A H/A N/A N/A N/A H/A N/A
Density-Maxi- - Townhouses?
mum/acre
CERTIFICATE OF SERVICE
I , Robert P. Rudolph, attorney for Helen Kellner in the
Foregoing action certify that I have served copies of :
Notice of Appeal from Grant and Approval of Special Permit and
Variance under MGL Ch. 40A Sec. 17
on the parties to this action by mailing copies thereof this day
postage prepaid to:
Town Clerk
Town of North Andover
120 Main Street
North Andover, MA 01845
Dated: January , 1987
obert YV. Ruof , Esquire
UDOLPH, AND W do KRONER
64 Central St t
Georgetown, MA 01833
(617 ) 352-8111
.. } A ZO
RUDOLPH, ANDREWS & KRONER T&O'l Al'l (1`-
RIN
Atto»M at Law Ndt} 1 4 JAI i
S=Y-FOUR CENTRA[.STREET J
POST 0"M Box 238 J J
GEORGCMWN,MMUCHtrMM 01833
RoUn P.RUDM M
ROMW E.AMRMM TMMMNB
MnCML S.KRMM (617)352-8111,352-6023
January 9, 1987
Essex Superior Court
34 Federal Street
Salem, Massachusetts 01970
Re: Kellner v. Maynard, Trustee, etals
Dear Clerk:
Enclosed please find Cover Sheet, Complaint, NOtice of Appeal, Certificate
of Service and check in the amount of $55.00 as filing fee for filing in
regard to the above entitled matter. Kindly file same.
Thank you for your courtesy.
r ul
Robert P. Rud h
RPR/kas
Enclosures
1
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT
HELEN KELLNER, )
Plaintiff )
)
VS. )
COMPLAINT and APPEAL UNDER
JAMES P. MAYNARD, TRUSTEE) GENERAL LAWS CH. 40A SEC. 17
MAYNARD REAL ESTATE, )
TRUST; FRANK SERIO, JR. , )
CHAIRMAN, ALFRED E. )
FRIZELLE, WILLIAM J. . )
SULLIVAN, AUGUSTINE W. )
NICKERSON, WALTER F. )
SOULE, ANNA P. O'CONNOR, )
RAYMOND A. VINENZI09 as )
members of the Board of )
Appeals of the Town of )
North Andover, )
Defendants)
1 . The Plaintiff Helen Kellner is the owner of a single
family dwelling located at 920 Turnpike Street, North Andover, and
is an abutter and a person aggrieved by the decision of the Board
of Appeals of the Town of North Andover dated November 18 , 1986.
2 . The Defendants Frank Serio, Jr. , Chairman, 250 Hillside
Road, Alfred E. Frizelle, 131 Appleton Street; William J . Sullivan,
405 Salem Street; Augustine W. Nickerson, 100 Moody Street; Walter
F. Soule , 70 Raleigh Tavern Lane; Anna P. O'Connor, 88 Martin
Avenue; Raymond A. Vinenzio, 11 Appledore Lane, are the duly
constituted regular and alternate members of the Board of Appeals
of North Andover, and all reside in the Town of North Andover.
I
3 . The Defendant, James P. Maynard, Trustee, Maynard Real
Estate Trust has a usual place of business at 740 Main Street,
Waltham, Massachusetts, petitioned the North Andover Board of
Appeals for a special permit and a four variances on October 23,
1986 to remove. an existing residence and construct a commercial
building and use the premises for a commercial day care center of
approximately 125 children .with 22 staff members. r
Count I
4 . In a decision dated November 18, 1986, and filed with the
Town Clerk on December 22,1986, the Board of Appeals granted a
Special Permit under Section 4 . 121 Paragraph 19 of the North
Andover Zoning Board, on a petition submitted by the Defendant,
James P. Maynard, Trustee, Maynard Real Estate Trust dated October
23, 1986 . A copy of the decision is annexed hereto as Exhibit "A"
and made a part hereof.
5 . On November 18, 1986 the members of the Board of Appeals
of the Town of North Andover held a hearing to consider not only
i
the Special Permit but all four variances. There was opposition
from the Planning Board, the Town Planner, abutters and several
residents in the same immediate zone area. The criteria for the
granting of the Special Permit and the conditions for approval are
contained in the Zoning By-Laws Sec. 10. 3 ( 1 ) . The criteria for
obtaining a variance are contained in M.G.L. Ch. 40A Sec. 10 and
the Zoning By-Laws 10.4. The criteria are distinctly different and
therefore the hearing for Special Permit using the criteria and
evidence for supporting variances is in violation of the Zoning
statutes and by-laws.
6 . The members of the Board of Appeals of the Town of North
Andover have exceeded their authority in granting the Special
Permit because they failed to comply with the Chapter 40A Sec. 9
which requires that Special Permits be issued subject to the
provisions of the by-law, specifically Section 10 .31 ( 1 ) a-e of the
i
Zoning By-Laws for the Town of North Andover. Evidence was
submitted at the hearing that the location was unsafe for use as a
commercial day care center because of its location adjacent to a
heavily traveled highway and inadequate accessibility from Chestnut
and Mill Street. No conditions 'or provisions were made for
adequate or appropriate facilities. No conditions or provisions
were made for the serious hazard to the children during their
outside play or during the period when they were picked up or
r
dropped off in regard to their safety and danger to other traveling _
vehicles. No conditions or provisions were made regarding the 1
control of the children, the hours of operation, parking
facilities , playground facilities , traffic patterns, egress and
ingress, building plans , handicap requirements, hospital or medical
facilities, alarms or fire apparatus ,; adequate fences, pedestrian
control and the many other provisions which would attend the care
and custody of small children not unlike a public school.
7 . The Board of Appeals failed to consider the evidence
submitted by the neighborhood regarding the adverse impact to the
residential zone and- specifically related to but not limited to the
conversion of a residence to a commercial use . They also failed to
consider the enormous safety hazard created by the new use in a
residential neighborhood and did not provide safety conditions in
violation of the Zoning By-Laws 10.31 .
COUNT II
8. In a decision dated November 18, 1986, and filed with the
Town Clerk of the Town of North Andover on December 22, 1986, the
Board of Appeals granted four variances of Section 7 Paragraph 7 . 3
of the Zoning By-Law and Table two on a Petition submitted by the
Defendant, James P. Maynard, Trustee, Maynard Real Estate, Trust.
A copy of the decision is annexed hereto as Exhibit "A" and made a
part hereof.
9 . On November 18, 1986 the members of the Board of Appeals
of the Town of North Andover held a hearing to consider not only
the Special Permit but all four variances.. There was opposition
from the Planning Board, the Town Planner, Abutters and several
residents in the same immediate zoned area. The criteria for
obtaining a variance are contained in M.G.L. Ch. 40A Sec. 10 and
2 . Determine and adjudge that the decision of the Board of
Appeals approving the Special Permit requested by James P. Maynard,
Trustee, Maynard Real Estate Trust on October 23 , 1986 was
erroneous in law and fact and exceeded the Board's authority;
3 . Determine and adjudge that the decision of the Board of
Appeals approving the variance requested by James P. Maynard,
Trustee, Maynard Real Estate Trust on October 23 , 1986 was
erroneous in law and fact and exceeded the board's authority;
�. Annul the decision of the Board of Appeals granting the
Special Permit;
5 .. Annul the decision of the Board of Appeals granting the
variance;
6. Grant such further relief or justice as equity may
require.
PRestAtNER
, 77Dated: January y , 1987uire, ANDR
64 Central Street
Georgetown, MA 01833
Tel: (617)352-8111
TAX& 2
SUM MAW OF DIMENSIONAL REQUIR>QONTS -
Res. Res. Res. Res. Res. Bus. Bus. Bus. Bus. Gen. Ind. Ind. Ind. Ind.
1 2 3 4 56 7 1 27 3 4 Bus. 1 2 3 S
Lot Area- 65.340 43.560 25,000 12.500 43.5603 25,000 25.000 120,000 80,000 25,000 80,000 80.000 435,600 50,000
Min. S.F.
Height 35 35 35 35 35 35 35 35 60 45 55 55 55 55
Maximum (ft.)
Street Fron- 175 150 125 100 ISO 125 125 300 200 125 150 150 150 150
tags-Minimum
(ft.) ;
Front Set- 30 30 30 308 30 30 25 100 50 25 50 SO 100f0 30
back Minimum
(ft.)
1
%D Side Set- 30 30 20 113 25 2022.52 503 503 252 503 503 20010 202
;D back Minimum
Rear Set- 30 30 30 30 30 303 303 503 50 353 503 503 20010 303
back Minimum
(ft.)
Floor Area N/A N/A ' N/A N/A 0.75:1 0.30el 0.75:1 0.40x1 1.50:1 N/A 0.50:1 0.50:1 0.50:1 O.S0e1
Ratio-Maximuz.
Lot Coverage N/A N/A N/A N/A 201 300 351 301 251 350 356 350 35111 351
Maximum
Dwelling Unit N/A N/A N/A N/A Mult1-fAmi1y13 N/A N/A N/A N/A K/A N/A N/A N/A N/A
Density-Maxi- - Townhouses?
swum/acre
laws without justification. There is an existing residential
building on the premises would more nearly comply with the setback
requirements authorized by the zoning by-law.
12 . The Board* of Appeals exceeded their authority in failing
to to find or substantiate the criteria contained in Chapter 40A
Sec. 10, particularly evidence of substantial hardship. The only
evidence submitted was that of a financial loss conditioned on the
fact that the present home were removed which is self created
hardship. The evidence abd fubdubgs are restricted to the
profitability of the sale of the lot. The Zoning by-law created no
hardship since the lot is owned and occupied as a residence and can
be sold as .a residence. Further, this use conforms with the zone
and characteristics of the neighborhood. The size of the project
mainly creates the basis for the variance. This is entirely within
the control of the petitioner. The new use of the land is also
controlled by the petitioner.
13 . The Board of Appeals granted the variances contrary to
the interest of the abutters, the neighbors, the Zoning Statute,
the Zoning By-laws, the Planning Board, the Town Planner and
without satisfactory conditions or safeguards and in excess of
their authority.
WHEREAS, the Plaintiff requests this Honorable Court to
1 . Hear all the pertinent evidence and determine the facts ;
the Zoning� ning B -Laws I0.4 .
Y The criteria are distinctly different and
therefore the hearing for variance using the Special Permit and
evidence supporting a Special Permit for approval is in violation
of the Zoning statutes and by-laws . The criteria for the granting
of the Special Permit and the conditions for approval are contained
in the Zoning By-Laws Sec. 10. 3. ( 1) .
1
10. The granting of a variance to change the setback
requirements from Route 114 exceeded the authority of the Board of
Appeals since this setback requirement is consistent with state
policy regarding a public highway and is based on the safety of the
traveling public including the ceitizens of North Andover.
Modification of this setback on Route 114 could and would mean an
erosion of the entire policy and an unnecessary risk. If a Special
Permit of use is granted to provide for the care and custody of
small children an even more unsafe and dangerous condition would
be created in violation of the criteria contained in M.G.L. Ch. 40A
Sec. 1A and also the specific criteria contained in Sec. 10 of
Chapter 40A. f
i
11 . The Board of Appeals further exceeded it authority in
granting inducing setbacks on both Mill and Chestnut Street below
the necessary 30 feet as shown in table 2 (attached hereto and made
a part hereof as Exhibit "B" ) for the applicable residential zone,
namely R-2 . The Board authorized a 50 percent reduction on both
Mill 1
and Chestnut Streets seriously deviating from the Zoning By-
n
n Ryf C! VI 11
AMOLM
f•., toss
DEC 22 1� 40 PH '86
TOWN of NOR7H ANDov>vx
r ,a MASSACHUSW Ts
BOARD OF APPEALS
1� Vt;:ceVoi. ';he.
Town
NOTICE OF DECISION E'
Date . . .22R . 1906
Petition No.. . . . . 3.4-0.7. . . . . . . . . .
Data of Hearing. . November: 18, 19 86
Petition of James P. Maynard, Trustee, Maynard Real Estate Trust
Premises affected . . . . . 7 31 Chestnut S t. .
Referring to the above petition for a variation from the requirements of the zoning. :bynlaws
Section 7, Para. 7. 3 and Table 2 and a .Special Permit of Section 4.121,
Para... .19. ... . . . . . . . . . . . . . . . . . . . . . . .
so as to permit . the. -construction -of •a• .clay. care. center . . . . . . . . . . . . . . . . . . . . . . .
After a public hearing given on the above date,the Board of Appeals voted to . GRANT. . . . the
variances and Special Permit . and hereby authorize the Building Inspector to is= a
the petitioner
permit to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
for the construction of the above work, based upon the following conditions:
Please see attached
e,
' Si8/1Cd
�-a-µ -r✓
. . . . Chairman.
. . . . . .. . Vi¢e-ghairman
in
Ox pn.. Gle.rk
. . . . .Anna. C'.Conno.r. .. .. .. . . . . . . . . g=
. . . . . . . . ;t
Board of Appeals
rr
No concrete information- was presented to the Board regarding any
plans' of the State to widen the highway at this location. The
/ Board feels that any such work could still be accommodated with
the building . located as proposed.
The impact . of" the proposed design would be minimal and not*
hazardous or 'detrimental to the area. The Board recognized and
sympathized with objectors, complaints about traffic, but feels
the concern is misplaced .with regard to the proposal before the
Board. , It is nota problem which would be changed regardless of
any action taken on the proposed site.
. The Board finds that, of all the uses allowed in an R-2 zone, the
proposed child care center is the use most din keeping with the
use of the area.
' The site . as proposed will not adversely impact the area, but
will act as an allowed transitional use from office and
commercial to residential in the area.
The Board finds the site with .the improvements as proposed, has
adequate and appropriate faci.lities provided to accommodate the
intended use.
For the aforementioned reasons the Board finds that the
provisions of Section- 10. 31 of the Zoning By-Law have been,
satisfied and ,further that the provisions of Section 10. 4 have
been satisfied, in particular due to the shape of the land in
question that a, literal -enforcement of ' the .provisions, of the
By-Law world involve a substantial hard-ship financial or
otherwise to thep etitioner 'and the owner .of the property , and
further that the relief granted herein is not of substantial
detriment to the public good and does not nullify nor
substantially derogate from intent of purpose of the Zoning
By-Law.
r
}. ....
0.
p 7
i
}
Upon a motion made by Mr. Frizelle, seconded by Anna O ' Connor,
the Board VOTED : Four in favor, with Mr. Soule opposed, to
grant the Special Permit and Variances as requested subject td
the following conditions :
1 . That the sewer' -service from the building be connected
to the sewer line in 'the street prior 'to the issuance of a
building permit for the construction of the building.
2. That the existing dwelling be moved prior to May 1,
1987.
It Ai
i} 3. That a' three foot high white picket fence be placed
around the parkinglot as shown: on the plan from Mill St. to-:'-*.-
" Chestnut St. .
4. That the concrete steps and the shed shown on the
plan be removed prior to the issuance of a building permit for
the construction of the ,building.
The Board finds the, following :.
Upon review of the Traffic analysis by Norman 0. Abend the Board
finds no significant problems or hazards would be created for
either. vehicular or pedestrian traffic by the proposed use as
the proposal will utilize Chestnut and Mill Streets for access.
and egress which have been shown to be more than adequate to
accommodate the proposed use. The Board is mindful of the
testimony of residents citing an increase in traffic, however,
the objections do not appear to be significant because the day
care center traffic would not be a major traffic generator as
set forth in the . traffic study. Furthermore, at some future
pointin time, the intersection of Mill St. and Route 0114 is
scheduled by• the state to have traffic signals installed.
The presently .existing structure violates the set back
requirements on Chestnut Street and those from Route #114. The
proposed use though asking, £or a„ variation to .15 feet from
Chestnut Street would constitute a lesser violation than
currently exists.
The requested variation to 80 Eeet setback -from Route 0114,
would' only marginally change the' 90 foot set back violation of
the existing building..
The site is unique in that it is a thin triangular parcel
bounded on all sides by roads and adjacent to Route #114. At '
fts widest , it is 180 feet deep, making the impact of- the .set
back requirements very substantial.
A hardship exists in that a literal enforcement of the Zoning
By-Law would almost constitute a taking of -the parcel in that by
taking off the 30 feet set backs required on Chestnut Street and
Mill Street, and the- 100 feet set back required on Route #114,
?
-approximately 66, 195 square feet would be unusable on a 72, 745
square foot lot. This amounts to 913 of the property being
,non-usable : The area available for construction would be a
thin triangle not readily usable without some exotic building '
design. A literal enforcement would amount to an extreme '
financial . hardship for the property owners with no commensurate
benefit to the community.
S
... , RECEPIF0
Z,+,.� CAN!FL
TOW11i Ci "i ;t
WORT" 4o-'-_DYER
DEC 22 12 41 PH '86
TOWN OF NORTH ANDOVER
MASSACHUSRTTS
BOARD OF APPEALS
;1 be iti,�
ths
James P.
stee
Gate p{ rOff1Ge o{ the Maynard RealnEstau
Estate,
�n the 731 Chestnut Street
Clerk'
Petition # 34-87
December 22, 1986
Daniel Long , Town Clerk
Town of North Andover
120 Main Street
North Andover, MA 01845
Dear Mr. Long :
The Board of Appeals held a public hearing on November 18, 1986,
upon the application of James P. Maynard , Trustee, Maynard Real
Estate, Trust , requesting a variation of Section 7, Paragraph
7. 3 of the Zoning By-Law and Table Two, and a Special Permit,
Section 4. 121 Paragraph 19, so as to permit the construction of
a day care center and relief of the 100 foot set back from Route
#114, and relief of the 50 foot green space and 30 foot set back
on Chestnut St. on the premises located at 731 Chestnut St. ,
North Andover, MA. The following members were present and
voting : Frank Serio, Jr. , Chairman, Alfred E. Frizelle , Esq. ,
Vice Chairman, Augustine Nickerson, Clerk, Walter Soule and Anna
O' Connor.
The hearing was advertised in the North Andover Citizen on
October 30 and November 6, 1986, and all abutters were notified
by regular mail .
At the hearing , evidence was received from the petitioner
through Attorney John J. Willis , Jr. , which included the
following :
n
(a) Site Plan showing proposed building location,
i
location of access and egress points, and parking and
landscaping details.
(b) Traffic analysis by Norman 0. Abend iden`�ifying
present traffic patterns and projecting future changes which
would occur as a result of the proposed use.
(c) Photograph and package from "Children' s World"
showing architectural styling , floor layouts , and operational
characteristics of proposed structure .
(d) Oral presentation of geographical and use
characteristics of neighborhood and Route #114 in the vicinity
of the site and along highway from Middleton town line to and
beyond the site.
Evidence was taken in favor of Petition from North Andover
Building Inspector and Zoning Enforcement Officer Charles Foster
by letter stating that proposal was appropriate for the area and
in keeping with intent and purpose of ' the by-law.
Letter from Chief of the North Andover Fire Department stating
the project met his requirements for safety and access and
egress. Letter suggested project might consider sprinkler
system in building and that fire alarm systems be direct wired
_ tn _the__Eire cation___—
Letter from North Andover Planning Board stating standard
opposition to variation of 100 foot set back requirement on
Route #114.
Oral opposition was expressed by residents on Chestnut Street
and on Mill Road and vicinity regarding fears of increased
traffic. ' Testimony was presented that vehicles travel at
excessive rates of speed along Chestnut Street, and that the
area was residential and should remain so. Oral opposition was
also presented concerning historical character of presently
existing structure. No testimony was presented concerning any
possible solutions to the Historic Building, except that the
Petitioner stated that the owner of the structure intended to
relocate it to another site.
Upon a motion made by Mr. Frizelle , seconded by Anna O ' Connor,
the Board VOTED: Four in favor, with Mr. Soule opposed, to
grant the Special Permit and Variances as requested subject to
the following conditions :
1 . That. the sewer service from the building be connected
to the sewer line in the street prior to the issuance of a
building permit for the construction of the building.
2. • That the existing dwelling be moved prior to May 1 ,
1987.
3. That a three foot high white picket fence be placed
around the parking lot as shown on the plan from Mill St. to
Chestnut St. .
4
4 . That the -.'woncrete steps and the shed shown on the
plan be removed prior to the issuance of a building permit for
the construction of the building.
The Board finds the following :
Upon -review of the Traffic analysis by Norman 0. Abend the Board
finds no significant problems or hazards would be created for
either vehicular or pedestrian traffic by the proposed use as
the proposal will utilize Chestnut and Mill Streets for access
and egress which have been shown to be morethanadequate to
accommodate the proposed use. The Board is mindful of the
testimony of residents citing an increase in traffic, however,
the objections do not appear to be significant because the day
care center traffic would not be a major traffic generator as
set forth in the traffic study. Furthermore, at some future ,
point in time , the intersection of Mill St. and Route 0114 is
scheduled by the state to have traffic signals installed.
The presently existing structure violates the set back
requirements on Chestnut Street and those from Route #114. The
proposed use though asking for a variation to 15 feet from
�..... :-.. Che-&t.L:lit _Str*St would -.rangtir .t than
currently exists.
The requested variation to 80 feet set back from Route #114,
would only marginally change the 90 foot set back violation of
the existing building.
The site is unique in that it is a thin triangular parcel
bounded on all sides by roads and adjacent to Route #114. At
its widest , it is 180 feet deep, making the impact of the set
back requirements very substantial.
A hardship exists in that a literal enforcement of the Zoning .
By-Law would almost constitute a taking of the parcel in that by
taking off the 30 feet set backs required on Chestnut Street and
Mill Street, and the 100 feet set back required on Route #114,
approximately 66, 195 square feet would be unusable on a 72, 745
square foot lot. This amounts to 91% of the property being
non-usable . The area available for construction would be a
thin triangle not readily usable without some exotic building
design. A literal enforcement would amount to an extreme
financial hardship for the property owners with no commensurate
benefit to the community.
No concrete information was presented to the Board regarding any
plans of the State to widen the highway at this location. The
Board feels that any such work could still be accommodated with
the building located as proposed.
The impact of the proposed design would be minimal and not
hazardous or detrimental. -to the area. The Board recognized and
sympathized with objectors , complaints about traffic, but feels
the concern is misplaced with regard to the proposal before the
Board. It is not a problem which would be changed regardless of
any action taken on the proposed site.
The Board finds that of all the uses allowed in an R-2 zone , the
proposed child care center is the use most in keeping with the
use of the area.
The site as proposed will not adversely impact the area, but
will act as an allowed transitional use from office and
commercial to residential in the area.
The Board finds the site with the improvements as proposed, has
adequate and appropriate facilities provided to accommodate the
intended use.
For the aforementioned reasons the Board finds that the
provisions of Section 10. 31 of the Zoning By-Law have been
satisfied and further that the provisions of Section 10. 4 have
been satisfied, in particular due to the shape of the land in
---` - •- .�fi.lllsL tba" liter&&- emfar'.raa&"t aF t" of the
By-Law would involve a substantial hard-ship financial or
otherwise to the petitioner and the owner of the property, and
further that the relief granted herein is not of substantial
detriment to the public good and does not nullify nor
substantially derogate from intent of purpose of the Zoning
By-Law.
Sincerely,
BOARD OF APPEALS
Fr nk Seri"Jr
Chairman
AEF/jib
ATTEST: . f
ATlu® Copy COO* DEC ZZ iZ 1 , tM{ UU
TOWN OF NORTH ANDOVER
Town 01ork
MASSACHUSETTS
BOARD OF APPEALS
peal s
NOV aP �1 c Na
��! G 1�
d �J1 •\1'17 W
of t� •nom of the James P. Maynard , Trustee
nate 0i{ire Maynard Real Estate, Trust
jit\ 731 Chestnut Street
Petition 0 34 -87
December 22, 1986
Daniel Long , Town Clerk
Town of North Andover
120 Main Street
North Andover, MA 018'45
Dear Mr. Long :
The Board of Appeals held a public hearing on November 18, 1986,
upon- the application of James P. Maynard , Trustee, Maynard Real
Estate, Trust , requesting a variation of Section 7, Paragraph
7. 3 of the Zoning By-Law and Table Two, and a Special Permit,
Section 4. 121 Paragraph 19, so as to permit the construction of
a day care center and relief of the 100 foot set back from Route
0114 , and relief of the 50 foot green space and 30 foot set back
on Chestnut St . on the premises located at 731 Chestnut St. ,
North Andover, MA. The following members were present and
voting : Frank Serio , Jr. , Chairman, Alfred E. Frizelle , Esq. ,
Vice Chairman, Augustine Nickerson, Clerk, halter Soule and Anna
O' Connor.
The hearing was advertised in the North Andover Citizen on
October 30 and November 6, 19369 and all abutters were notified
by regular mail. ,
At the hearing , evidence was received from the petitioner
through Attorney John J. Willis, Jr. , which included the
following :
(a) Site Plan showing proposedibuilding location,
location of access and egress. points , and parking and
landscaping details.
(b) Traffic analysis by Norman O. Abend iden" ifying
present traffic patterns and projecting future changes which
would occur as a result of the proposed use.
(c) Photograph and package from "Children' s World"
showing architectural styling, floor layouts , and operational
characteristics of proposed structure.
(d) Oral presentation of geographical and use
characteristics of neighborhood and Route #114 in the vicinity
of the site and along highway from Middleton town line to and
beyond the site.
Evidence was taken in favor of Petition from North Andover
Building Inspector and Zoning Enforcement Officer Charles Foster
by letter stating that proposal ' was appropriate for the area and
in keeping with intent and purpose of ' the by-law.
Letter from Chief of the North Andover Fire Department stating
the project met his requirements for safety and access and
egress . Letter suggested project might consider sprinkler
system in building and that fire alarm systems be direct wired
to- the _fire_stati_on_.___ _- _ -- -- - ---
Letter from North Andover Planning Board stating standard
opposition to variation of 100 foot set back requirement on
Route #114.
Oral opposition was expressed by residents on Chestnut Street
and on Mill Road and vicinity regarding fears of increased
traffic. ' Testimony was presented that vehicles travel at
excessive rates of speed along Chestnut Street, and that the
area was residential and should remain so. Oral opposition was
also presented concerning historical character of presently
existing structure. No testimony was presented concerning any
possible solutions to the Historic Building, except that the
Petitioner stated that the owner of the structure intended to
relocate it to another site.
Upon a motion made by Mr. Frizelle , seconded by Anna O ' Connor,
the Board VOTED: Four in favor, with Mr. Soule opposed, to
grant the Special Permit and Variances as requested subject to
the following conditions :
1 . That, the sewer service from the building be connected
to the sewer line in the street prior to the issuance of a
building permit for the construction of the building.
2. That the existing dwelling be moved prior to May 1,
1987.
3. That a three foot high white picket fence be placed
around the parking lot as shown on the plan from Mill St. to
Chestnut St. .
4 . That the *~oncrete steps and the shed shown on the
plan be removed prior to the issuance of a building permit for
the construction of the building.
The Board finds the following :
Opon -review of the Traffic analysis by Norman 0. Abend the Board
Finds no significant problems or hazards would be created for
either vehicular or pedestrian traffic by the proposed use as
the proposal 'will utilize Chestnut and Mill Streets for access
and egress which have been shown to be more than adequate to
accommodate the proposed use. The Board is mindful of the
testimony of residents citing an increase in traffic, however,
the objections do not appear to be significant because the day
care center traffic would not be a major traffic generator as
set forth in the traffic study. Furthermore, at some future
point 'in time , the intersection of Mill St. and Route #114 is
scheduled by the state to have traffic signals installed.
The presently existing structure violates the set back
requirements on Chestnut Street and those from Route #114. The
proposed use though asking for a variation to 15 feet from
C.aestnu..t St_r_cet .wQu1ds.oasti_tute.-..les-scr _IolatLoa tharL ,
currently exists.
The requested variation to 80 feet set back from Route #114,
would only marginally change the 90 foot set back violation of
the existing building.
The site is unique in that it is a thin triangular parcel
hounded on all sides by roads and adjacent to Route #114. At
its widest , it is 180 feet deep, making the impact of the set
back requirements very substantial.
A hardship exists in that a literal enforcement of the Boning
By-Law would almost constitute a taking of the parcel in that by
taking off the 30 feet set backs required on Chestnut Street and
?Rill Street , and the 100 feet set back required on Route #114,
approximately 66, 195 square feet would be unusable on a 72, 745
square foot lot. This amounts to 91% of the property being
non-usable . The area available for construction would be a
Chin triangle. not readily usable without some exotic building
design. A literal enforcement would amount to an extreme
financial har(!ship for the property owners with no commensurate
benefit to the community.
No concrete information was presented to the Board regarding any
plans of the State to widen the highway at this location. The
Board feels that any such work could still be accommodated with
the building located as proposed.
The impact of the proposed design would be minimal and not
hazardous or detrimental•. to the area. The Board recognized and
sympathized with objectors, complaints about traffic, but feels
the concern is misplaced with regard to the proposal before the
Board. It is not a problem 'which would be changed regardless of
any action taken on the proposed site.
The Board finds that of all the uses allowed in an R- 2 zone , the
proposed child care center is • the use most in keeping with the
use, of the area.
The site as proposed will not adversely impact the area, but
will act as an allowed transitional use from office and
commercial to residential in the area.
The Board finds the site with the improvements as proposed, has
adequate and appropriate facilities provided to accommodate the .
intended use.
For the aforementioned reasons the Board finds that the
provisions of Section 10. 31 of the Zoning By-Law have been
satisfied and further that the provisions of Section 10. 4 have
been satisfied, in particular due to the shape of the land in
_... question that. a Iiteral_atiforcemetit of --the px-uvis.i_ons..of. thr.___. _.
By-Law would involve a substantial hard-ship financial or.
otherwise to the petitioner and the owner of the property , and
further that the relief granted herein is not of substantial
detriment to the public good and does not nullify nor
substantially .derogate from intent of purpose of the Zoning
By-Law.
Sincerely ,
BOARD OF APPEALS
-7
Frank Serio Jr.
Chairman
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►.SgTVW 11' QEC 2Z f2' 40 PH '86
�• H ��
TOWN OF NORTH ANDOVER
t• :1 l.' fi i�'=: MASSACHUSETTS
BOARD. OF APPEALS
NOTICE OF DECISION
Petition No.. . . . . 34- R7. . . . . . . . . .
Date of Hearing. .Novamb r- 18 0. 19 8 6
Petition of .James P. MaXnard, Trustee, Maynard Real Estate Trust
Ammises affected . . . . . . . 7 31 Chestnut S t., . . . . . . . . . . . . . . . .. . . . . . . I . . . . . . . . . . . .
Referring to the above petition for a variation from the requirements of the zoni-ng, •by-laws
Section 7, Para. 7. 3 and Table 2 and a Special Permit of Section 4 .121 ,
Para . .i9. _. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
so as to permit . the. aonstrucbion• •of •a•-day -care. •center . . . . . . . . . . . . . . •'•
After a public hearing given on the above date, the Board of Appeals voted to . GRANT. . . . the
variances and Special Permit and hereby authorize the Building Inspector to issue a
permit to . . . . . . the petitioner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
for the construction of the above work, based upon the following conditions:
Please see attached
Signed
- . . , , , , , k'rank, Serio,,, , �r., ,, Chairman•
. . . . . . . Vf ge..chairman
AuguSt,f pp_. .N;L.cke.Kspn Cle.xk
Anna. Q�Connar. . . . . . . . . . . . . . .
Board of Appeals
Upon a motion made by Mr. Frizelle , seconded by : Anna O ' Connor ,
the Board VOTED: Four in favor, with Mr. Soule opposed , to
grant the Special Permit and Variances as requested subject td
the following 'conditions : 1.
1 . That the sewer -service from the building be connected
to the sewer line in the street prior 'to the issuance of a
building permit for the construction of the building.
2. That .the existing dwelling be moved prior to May 1 ,
1987.
3. That a' three foot 'high white picket fence be placed
around the parking 'lot as shown on the plan from, Mill St. to::•.
Chestnut St. .
-4. That the concrete steps and the shed shown on the i
plan be removed prior to the issuance of a building permit for
the construction of the building._
The Board finds the following :
Upon review of the Traffic analysis by Norman 0. Abend the Board
finds no significant problems or hazards would be created for
either. vehicular or pedestrian traffic by the proposed use as
the proposal will utilize- Chestnut and Mill Streets for access
and egress which have been shown to be more than adequate to
accommodate the proposed use.. The Board is mindful of the
testimony of residents- citing an increase in traffic , however,
the objections do not- appear to be significant because the day
care center traffic would not be a major traffic generator. as
set forth in the traffic study. Furthermore , at some future
point. in time,. the intersection of Mill St. and Route #114 is
scheduled by• the state to have traffic signals installed.
The presently existing structure violates the' set back
requirements on Chestnut Street and those from Route #114. . The
proposed use though asking for a variation to .1S feet from
Chestnut Street would constitute a lesser violation than
currently exists.
The requested variation to 80 feet set back from Route 0114 ,
would' only marginally change the 90 foot se.t. back violation of
the existing building,.
The site is unique in that it is a thin triangular parcel
bounded on all sides by roads and adjacent to Route 0114. It
its widest, it is 180 feet deep, making the impact of- the .set
back requirements very substantial.
A hardship exists in that a literal enforcement of the Zoning
By-Law would almost constitute a taking of the parcel in that by
taking off the 30 feet set backs required on Chestnut Street and
set back
required on Route #114,
Mill Street, and the- 100 feet q
•approximately 66, 195 square feet would be unusable on a 72 , 74S
square foot lot. This amounts 'to 91% of the property being
non-usable : The area available for construction would be a
� thin triangle not readily usable without some exotic building '
design. A literal enforcement would amount to an extreme
financial . hardship for the property owners with no commensurate
benefit to the community.
No concrete information- was presented to the Board regarding any
plans of the State to widen the highway at this location. The
Board feels that any such work could still be accommodated with
the building . located as proposed.
The impactof the proposed design would be minimal and not' 7 }
hazardous or detrimental to the area. The Board recognized and
sympathized with objectors , complaints about traffic, but feels
the concern is misplaced .with regard to the proposal before the
Board. . -, It is nota problem which would be changed regardless of
any action taken on the proposed site.
The Board finds that- of all the uses allowed in an R-2 zone , the
proposed child care center is the use most in keeping 'with the
use of the area.
The site - as proposed will not adversely impact the area, but
will act as an allowed transitional use from office and
commercial to residential in the area.
The Board finds the site with the improvements as proposed , has
adequate and appropriate faci.lities provided, to accommodate the
intended use.
For the aforementioned reasons the Board finds that the
provisions of Section. 10. 31 of the Zoning By-Law have been-
satisfied and further that the provisions of Section 10. 4 have
been satisfied, in particular due to the shape of the land in
question that a literal enforcement of the provisions of the
By-Law would involve a substantial hard-ship financial or
otherwise to the petitioner and the owner . of the property , and
further that the relief granted herein is. not of- substantial
detriment to the public good and does not nullify nor
substantially derogate from intent of purpose of the Zoning
By-Law.
f i
r
` Ilec:ci•tc:d by Town Clerk-
TOW
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��t 3 2 zIPM `86
T( TN CLC NORTH ANDOVER, MASSACHUSETTS
BOARD OF APPEALS
APPI,ICATION FOR RELIEF PROM THE REQUIRC
MENTS OF THE ZONING ORDINANCE
JAMES P. MAYNARD, TRUSME OF 740' MAN STREET
Applicant mAyNARD REALgATE TRUST_ �_�Address Ng1LTHAM, 1 4=4
1. Application is hereby made:
a) For a variance from the requirements of Section 7 . Paragraph 7.3
and Table 2 . of the Zoning By Laws .
b) For a Special Permit under Section4.121Paragraph`19_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 and building(s ) numbered 731
Street . ,
Q b) Premises. aff•ected are property with frontage on the North ( )
South ( x) East .( ) West ( ) side of Chestnut
Street , and known as No. 731 Chestnut - Street .
c ) Premises affected are in Zoning District R2 and the premises
a f f ,c ted have an area of l.6WacreMqVj00a0d3mcxt and frontage of
700 feet .
3. Ownership
a)' Name and address of owner ( if joint ownership, give all names ) :
CHARLES J. CARRELL
DaL-e of Purchase. Previous Owner
b) If applicant is not owner , check his/her interest in the premises:
x Prospective Purchaser _Lesee other (explain)
� Sipe of proposed building:' front;_ feet deep;
Height stories; _feet .
a) Approximate date of erection:
b) Occupancy or use of each floor :
c ) Type of construction: _ ______ _`__
tA.b� �_
� feet front; feet deep;
5 . sizes of >•xi �tittg building: / r. •
a) Approximate A proximate date of erection:
b) Occupancy or use of each floor :
r. ) Type of construction:
6. Has there been a previous appeal , under zoning, on these premises?
No If so, when?
Description of relief sought on this petition Special Permit to use thesite
for a day care center and variation of the 100 footran - llT equ a enn
of no building to an 80 foot setback, and variation of the 50 foot greenspac:e require-
menf-o-a'32'-fool grat^►t�`WXMtrdi of�Tie O'3•a'a�s�t aZ�Z' r3�iZ sfrAt�-Sgr�et
F3. I ell e tl the Registry of Deeds in Book Page!_-----
hand Court Certificate No. ----Book___ Page
The principal points upon which I-base my application are as follows:
(must be stated in detail )
See attached
I agree to pay the filing fee, advertising in newspaper , and incidental
e:cpcnses*
natu e ,o f= k�etit oner�s -
g
Every' application for action by. the Board shall be made on a form approved
bNr the Board . These forms shall be furnished by the Clerk upon request .
*, ycommunication purporting to be an application shall be treated as mere
t -rice of intention to seek relief until such time as it is made on the
n;_f.icial application form. All information called for by the form shall
:_-U furnished by the applicant in the manner ,therein �prescribed.
Every application shall be submitted with a list of "Parties In Interest"
which list shall include the petitioner, abutters, owners of land directly
opposite on any public or private street or way, and abutters to the
a!:utters within three hundred feet ( 300 ' ) of the property line of the
petitioner as they appear . on the most recent applicable tax list,
notwithstanding that the land of any such owner is located in another city
or town, the Planning Board of the city or town, and the Planning Board of
every abutting city or . town.
*Every application shall be submitted with an application charge cost in
the amount of $25.00. In addition, the petitioner shall be rusponstiible k
for any and all costs involved in bringing the petition before the Board.
Such costs shall include mailing and publication, but are not necessarily
limited to these .
Lavery application shall be submitted with a plan of land approved by the
iioard. No petition will be brought before the .Board unless said plan has
been submitted . Copies of the Board' s requirements regarding plans are
attached hereto or are available from the Board of Appeals upon request.
LIST OF PARTIES IN INTEREST
Name Address
Associated Condominium Corp. 793 Turnpike Street, North Andover, MA 01845
Jefferson Office Park 39 Brighton Aye., Allsten, MA 02134
Ragweed Realty Trust Sol Turnpike Street, North Andover. MA 01845
Watts Regulator Co. P.O. Bax 6280 Laxarence, MA 01842
Bredbury Frayne 710 Chestnut .Street.•North Andover, MA 01845
(use additional sheets if necessary)
` Re: James P. Maynard, Trustee
The property for which the variances and special permit is requestedr is unique
in that due to its shape and location adjacent to Turnpike Street, a literal
enforcement of the zoning by-laws would effectively make the lot non-usable.
This would lead to an extreme economic hardship in that the lot would be non
usable. The variances requested could be granted without any substantial
detriment to the public good or without derogating from the intent or purpose
of the by-law.
The special permit for a child day care center may be granted as the area of
the site is appropriate for the use intended. Traffic will be controlled thresh
access and egress auto roads off the highway, without creating any vehicular or
pedestrian hazards. The site when develgoed► will be an asset to the area
aethetically and economically. Finally, at this. location, the use will blend
with the surrounding usages in keeping. with the general intent and purpose of the
by-law.
,n
Oversized Maps on file with the Town