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HomeMy WebLinkAboutETHUN, ALAN , T K t;o ' i ;IER COMMONWEALTH OF MASSACHUSETTS FEB 17 12 n Pb X83 ESSEX, SS: SUPERIOR COURT EQUITY CIVIL ACTION NO. ALA& ETHUN, PLAINTIFF * VS. * TOWN OF NORTH ANDOVER ZONING * COMPLAINT• BOARD OF APPEALS, FRANK SERIO,Jr. , RICHARD J. TREPANIER, RAYMOND A. * UNDER M.G.L.A. CH. 40A, Sec. 17 VIVENZI09 WALTER F. SOULE, AND MAURICE S. FOULDS, MEMBERS, AND CHARLES FOSTER, BUILDING INSPECTOR The applicant invokes the provisions of Massachusetts General Laws, Chapter 40A, Section 17 and respectfully represents as follows: 1. That the petitioner is Alan Ethun of 9 Rock Road, North Andover, Essex Countv, Massachusetts and is agrieved by a decision of the Town of North Andover Zoning Board of Appeals and herein files this appeal. 2. The respondents are the Town of North Andover Zoning Board of Appeals, Town Hall, North Andover, Essex County, Massachusetts, and Frank Serio, Jr. , Richard J. Trepanier, Raymond A. Vivenzio, Walter -F. Soule, Manriee S. Foulds, Members, all of North Andover, Essex County, Massa- chusetts, and Charles Foster, Building Inspector for the Town of Aorth Andover, of north Andover, who made the decision on the petition herein after referred to (see attached, Exhibit A) from which decision this appeal is taken. 3. Your petitioner filed a petition seekinga review of the decision made by the Building Inspector asking the Building Inspecior' to correct, restrain and disallow the use of a residence as a dental office under the provisions of Sec. 4. 122(4) of the North Andover Zoning By-Laws concerning the use by Dr. Robert Franz of a dwelling at 9 Rock Road, North Andover as a dental office. 4. The respondent Zoning Board of Appeals after publication and duc notice sent to abutters and parties interested, held a public hearing on January 10, 1983 and that arguments were presented by the proponents and objectors to the petition. 5. At the conclusion of the meeting, the respondent Zoning Board of Appeals took under advisement your petitioner's petition for review. Thereafter by decision dated January 28, 1983 and received by the Town Clerk for the Town of North Andover on January 31, 1983, the respondents denied your petitioner's request. j 1 6. The decision of the respondents Zoning Board of Appeals made no specific findings of fact but rather reviewed the testimony of various parties including the arguments of counsel and upon Motion made and seconded by members of the Zoning Board of Appeals, voted to deny the request that the decision of the Building Inspector be revoked and the permit granted annuled. 7. Your petitioner urges that the failure of the respondent Zoning Board of Appeals make specific findings of fact precluded them from making the ultimate decision that the decision of the Building Inspector with regard to the issuance of a permit should not have been revoked. 8. Your petitioner further states that the decision of the respondent Zoning Board of Appeals refusing to reverse the Building Inspector's decision and annul the permit exceeded the power of the Zoning Board of Appeals in that it was arbitrary and capricious and not in accordance with the criteria set forth in the Zoning By-Laws and State Statute. 9. That the respondent Board did not take into consideration the particular circumstances attendant to the petitioner's request nor did the Board take into consideration the specific requirements of the Zoning By-Laws in the alleged violations thereof. WHEREFORE your Petitioner prays: 1. That the findings and rulings of the respondent Zoning Board of Appeals for the Town of North Andover refusing to reverse the Building Inspector' Decision and annul the permit be set aside. 2. That the decision of the Building Inspector relative to the granting of the permit as set forth in the petition and decision be reversed and the permit annuled. 3. And for such further and other rel of t t this Court ay meet and just. Alan Eth , By His ttorne Michael James orahm R9 Main Str North Andover, MA 01845 Tel. 689-0800 I i • I • Any appeal shall be filed Nom , within (20) days after the 3:��,,►�,,'; date of filing of this Notice CO. t in the Office of the Town DAB: ON : •� �sss : �r Clerk. s $ys.4• gi{ NOROT iq . ,� OVER �'':;:� Jaid ! Pm '83 TOWN MASSACHUUSSETTSovER BOARD OF APPEALS NOTICE OF DECISION Date . . .January. 2$,. ,198.3_ . . , petition No.. . . .3-.1.8.3. . . . . . . . . . . . Date of Hearing. .JanuP,Zy. 104. :1983 Petition of . . . ALAN ETHUN ANi). WILLIAM .LE.SjER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . premises affected . . .9 . Ro clk .Road. ._ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Referring to the above petition for a sriaiaat Vie: . review. of. a . decision made by the Building Inspector and appropriate :action .to . correct, restrain, and disallow the use of a residence as a dental office saxau>pexj& , in. acco.xdance. .wi.th-Section. A., l?,2 ._(.4) . .of. .the .No.rth -Andover Zoning By Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . After a public hearing given on the above date, the Board of Appeals voted to . . . DENY . . . the request of the petitionersxtL �s� tdi2sg �c#ocalgsmscs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . fc� rl�ia�a�# stl ����� �aaad��c Signed Frank Serio, Jr. , Chairman Richard J. Trepanier, Esg . , Clerk Raymond A. Viyenzio,. .Esg. . . . . Walter F.. Soule Maurice_ S. Foulds. . . . . . . . . . . . . . . . . Board of Appeals ` Any appeal shall be filed °f NonrH within (20) days after the date of filing of this Notice D A '' < <. r in the Office of the Town Clerk. - JAN 31 1 tg TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS January 28 , 1983 Alan Ethun and William Lever Premises Affected: 9 Rock Road Petition No. 3-' 83 Mr. Daniel Long, Town Clerk Town Office Building North Andover, Mass . 01845 Dear Mr. Long: The Board. of Appeals held a public hearing on Monday evening, January 10 , 1983 upon the application of Alan Ethun and. William Lever. The hearing was advertised in the North Andover Citizen on December 23 and 30 , 1982 , and all abutters were notified by regular mail. The following members were present at the public hearing: Frank Serio, Jr. , Chairmans Richard J. Trepanier, Esq. , Clerk; Raymond A. Vivenzio, Esq. ; Walter F. Soule.; and Maurice S . Foulds . The Board rendered their decision at a Special Meeting held on Tuesday evening, January 18, 1983 with members Serio, Trepanier, Vivenzio, Soule , and Foulds again present and voting. The petitioners seek a review of a decision made by the Building Inspector and appropriate action to correct, restrain, and disallow the use of a residence as a dental office in accordance with Section 4. 122 (4) of the zoning By Law on the premises located at 9 Rock Rd, The petitioners, along with several residents of Rock Road, Tolland Road, Berkeley Road, and Foss Road, being the Trafalgar Estates Sub- division, testified that on or about November 4, 1982 , several resi- dents of the subdivision and the town submitted a complaint to the Building Inspector and requested that the use of 9 Rock Road as a dental office be investigated. by his department. The Building In- spector's reply to this request, dated November 17 , 1982 , stated that, following an investigation of the premises , he found no violation of the Zoning By Law. Alan Ethun and William Lever REC IM Premises Affected: 9 Rock Road TO[1'aYW WNCLEtdG . ERK Petition No. 3-183 NORTH Ahr,,OVER January 28 1983 e ,Page 2 JAN 31 1 52 PA '8 The petitioners further testified that the following violations exist at 9 Rock Road. that the owner of the premises , Dr. Robert Franz, is not residing on the premises ; that the home occupation is exceeding the allowable twenty five percent (25%) of existing gross floor area of the dwelling; that the use is detrimental to the neighborhood due to increased traffic and the fact that the dentist treats inmates of a local correctional facility; and that the signs located on the premises are not in accordance with the Zoning By Law. Attorney John Cronin, representing Dr. Franz , presented evidence ;and testified that Dr. Franz does , in fact, reside at 9 Rock Road; that the amount of square footage used for the home occupation does not violate the Zoning By Lavey, that the sign located on the premises is , in fact, smaller than that allowed by the Zoning By Law; and that the use of 9 Rock Road as a home occupation is in no way detri- mental to the neighborhood due partlyto the fact that the property in question as well as the entire subdivision is located near the intersection of two highways . Mr. Charles Foster, Building Inspector, testified that he has in- spected the premises on a number of occasions and has determined that no violation to the Zoning By Law exists at 9 Rock Road. A motion was made by Mr. Vivenzio and seconded by Mr. Trepanier to reverse the Building Inspector's decision and annul the permit. The motion failed to carry, with members Vivenzio and Trepanier voting in favor of the motion and members Serio, Soule and Foulds voting in opposition. Therefore, the petition is denied, pursuant to M.G.L. Chapter 40-A and the Zoning By Law of the Town of North Andover, Section 10 , Para- graph 10 . 4 (2) . Sincerely , BOARD OF APPEALS Frank Serio, Jr. , Chairman FS/jw cc Petitioners Dr. Robert Franz Building Inspector Parties in Interest NDN Any appeal shall be filed f r „ d;.••• ••:!, within (20) Y da S after the date of filing of this Notice In the Office of. the Town JOVER c Clerk. -�-- U6 I 0 B TOWN OF NORTH ANDOVER MASSACHUSLY e BOARD OF APPEALS NOTICE OF DECISION Date August 16 , 1983 Petition No.. . . .5 2.- ' 8.3 . . . . . . . . . . Date of Hearing. . . A U 9.0 s t: ,8,,, .1 q 8 3 Petition of . . . . . . ALAN . ANQ.AQMR! G. .GTAVN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Premises affected . . . . .8 . R.o c k. .R o.a d. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . Referring to the above petition for a variation from the requirements of the . :?o R i.n 9. .B Y. .L a w 5ect.i.on 7 ,. Par . 7 . 3 and Table 2 soastopermit . relief from the rear setback requirement to allow the continued existence of a deck . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . After a public hearing given on the above date, the Board of Appeals voted ism x x x x x x x x x t:hat. .a. .var.i.an.ca. .i.s. .not. . . . .x=*ha abW awAdfitm xBtWdftxh%j4dt%*xibc1&")W n.eee.ssA.ry. sin.ge, .tbp. .dp.ck„i.s. .not .wi.thi.n . 3.O '. .of. .the. .re.ar_ .lot line . *ix tbe)=astru twK n1k the*bnwecw*%*x blas”xponcths*otll wh*x*ndd1=: Signed frank .Serio , Chaffrman Alfred. . .E_.. Frizelle, Esq . , Vice Chairman Richard. J . Tre.pani.er.,.. Esq .., . Cl.erk WJ.M i am. J . , Su1.l.i van. . . . . . . . Augus.tin.e . W., . N.i. ok.ers.on. . . . . . . . . . Board of Appeals Any appeal shell be filed "°"',,� within (20) days after the 0 ' i' " •'� °° date of filing of this Notice T, ;{l� Ntt .� vs r in the Office of the Town ; ,.: • Clerk. A04 13 1 10 FM '83 TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS August 16 , 1983 Mr . Daniel Long , Town Clerk Alan Ethun Town Office Building 8 Rock Road North Andover, Mass . Petiti"on No. 52- '83 Dear Mr . Long : The Board of Appeals held a public hearing on Monday evening , August 8 , 1983 upon the application of Alan and Bonnie Ethun .. The hearing was advertised in the Lawrence Eagle Tribune on July 23 and 30 , 1983 and all abutters were notified by regular mail . The following members were present and voting: Frank Serio , Jr . , Chairman; Alfred E. Frizelle , Esq . , Vice Chairman ; Richard J. Trepanier ,- Esq. , Clerk ; William J . Sullivan ; and Augustine W. Nickerson : The petitioner seeks a variance from the provisions of Section 7 , Paragraph 7. 3 and Table 2 of the Zoning By Law so as to permit relief from the rear setback requirement to allow the continued existence of a deck on premises located at 8 -Rock Road . The petitioner ' s counsel testified that a recent plot pian was required for the conveyance of the premises which revealed the violation. There is a deck (porch ) which , in the opinion of the surveyor, is 23 feet from the ;rearcproperty line . Further testimony from the Building Inspector revealed that , in his opinion , the deck is not in violation of the Zoning By Law since the lot in question is triangular in shape and he deter- mined etermi ed that the 30 foot rear lot line setback does not apply , since his interpretation of a rear lot line is the line opposite the front line . He did , therefore , determine that the line of the lot on which the deck is placed is a side line , which requires only a 15 foot setback. Upon a motion made by Mr. Frizelle and seconded by Mr. Trepanier , the Board voted -unanimously that no variance is necessary since the deck is not within 30 feet of the rear lot line as interpreted by the BuildingInspector . Sincerely, Frank Serio , Jr . , Chairman iw MICHAEL JAMES GORHAM Attorney admitted to practice in Mass. and N.H. Marh 4, 1983 Clerk , Town of North Andover Zoning Board of Appeals Frank Serio, Jr. Richard J. Trepanier, Raymond A. Vivenzio, Walter F. Soule, and Maurice S. Foulds and Members and Charles Foster, Building Inspector; Daniel Long, Town Clerk, Town of North Andover Take notice that the enclosed Complaint has been filed with the Essex County Superior Court on February 17, 1983 and your attention is directed to MGLA Ch. 40A, S. 17 with respect to your obligations to respond to said Complaint. This notice is sent to you as required by law. Very truly yours, Michael James Gorham MJG/fnr N.H.Office: 1 Main Street • Hampstead,N.H. • (603)329-M Mass.Office:89 Main Street • North Andover,Ma. • (617)689-0800 Mailing address: P.O. Box.168 Hampstead,N.H.03841 DAN!E!, ANG TCS' : !_RK NOR3kt ;'t jOVER COMMONWEALTH OF MASSACHUSETTS FEB 17 92 39 M '83 ESSEX, SS: SUPERIOR COURT EQUITY CIVIL ACTION NO. ALM ETHUN, PLAINTIFF V�. * TOWN OF NORTH ANDOVER ZONING * COMPLAINT BOARD OF APPEALS, FRANK SERIO,,Jr. , RICHARD J. TREPANIER, RAYMOND A. * UNDER M.G.L.A. CH. 40A0 Sec. 17 VIVENZIO, WALTER F. SOULE, AND MIAURICE S. FOULDS, MEMBERS, AND CHARLES FOSTER, BUILDING INSPECTOR The applicant invokes the provisions of Massachusetts General Laws, Chapter 40A, Section 17 and respectfully represents as follows: 1. That the petitioner is Alan Ethun of 9 Rock Road, North Andover, Essex County, Massachusetts and is agrieved by a decision of the Town of North Andover Zoning Board of Appeals and herein files this appeal. 2. The respondents are the Town of North Andover Zoning Board of Appeals, Town H 1l, North Ando%vzr Essex Count,-, ",assachusetts, and Frank Serio, Jr. , Richard J. Tepanier, Raymond A. Vivenzio, Walter F. Soule, Mauric S. Goulds, Membe s, all of i4orth Andover, Essex County, Plassa- chuset s, and Charles Foster, Building Inspector for the Town or Jorth Andove of 1Qorth Andover, who made the decision on the petition herein after eferred to (see attached, Exhibit A) from which deeision this appeal is taken. 3. Your p titioner filed a petition seeking a review of the decision made by- the Building Inspector asking the Building Inspector to correct, restrain and disallow the use of a residence as a dental office under the pr visions of Sec. 4.122(4) of the North Andover Zoning By-Laws concer ing the use by Dr. Robert Franz of a'dwelling at 9 Rock Road, North dover as a dental office. 4. Thu r pondent Zoning Board of Appeals after publication and due notice sent to abutters and parties interested, held a public hearing on January 10, 1983 and that arguments were presented by the proponents and objectors to the petition. 5. At the conclusion of the meeting, the respondent Zoning Board of Appeals took under advisemeac your petitioner's petition for review. Thereafter j by� decision dated January 28, 1983 and received by the Town Clerk for the Town of North Andover on January 31, 1983, the respondents denied your petitioner's request. Y 6.' The decision of the respondents Zoning Board of Appeals made no specific findings of fact but ro-'�er reviewed the testimony of various parties including the arguments of counsel and upon Motion made and seconded by members of the Zoning Bcard of Appeals, voted to deny the request that the decision of the Building Inspector be revoked and the permit granted annuled. 7. Your petitioner urges that the failure of the respondent Zoning Board of Appeals make specific f tidings of fact pregluded them from mil.ing the I ultimate decision that the decision of the Building Inspector with regard to the issuance of a permit should not have been revoked. 8. Your petitioner further states that the decision of the respondent Zoning Board of Appeals refusing to reverse the Building Inspector's decision and annul the permit exceeded the power of the Zoning .Board of Appeals in that .it was arbitrary and capricious and not in accordance with the criteria set forth in the Zoning By-Laws and State Statute. 9. That the respondent Board did not take into consideration the particular circumstances attendant to the petitioner's request nor did the Board take into consideration the specific requirements of the Zoning By-Laws in the alleged violations thereof. . WHEREFORE your Petitioner prays: 1. That the findings and rulings of the respondent Zoning Board of Appeals for the Town of North Andover refusing to reverse the Building Inspector' Decision and annul the permit be set aside. 2. That the decision of the Building Inspector relative to the granting of the permit as set forth in the petition and iecision be reversed and the permit annuled. 3.i And for such further and other rel tof 91st this Court ay meet and just. Alan Et:h , By His attorne Michael James orahm 89 Main Str North Andover, MA 01845 Tel. 689-0800 s .e r the .ur