HomeMy WebLinkAboutOUELLETTE, ALBERT FILED INC. RT --' -------
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ATTEST O /�—lf /
ASST.CL RK t
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P. COMMONWEALTH OF MASSACHUSETTS. /
Essex, ss Superior Court Department
Civil Action No. 1801 of
10, 1989
11 14
Albert J. Ouellette et al _
*
vs. * pL ATNTTFF S MQTI013_ ?$
Frank Serio,. ire , * SUMMARY_ JUDGMENT
T
Raymond
Vivenzo, Walter Soule, Ann * cco ,`';
O'Connor, and Louis Rissen * u, w �r"
as they are members of the
Zoning Board of North Andover
Cai
Now comes the Plaintiff, Albert J. Ouellette, and moves
r this Court, pursuant to Rule 56 of the Mass. R.- Civ. P. to
/ enter a Summary Judgment in the Plaintiff 's favor on the
ground that there is no genuine issue as to any material
fact and the Plaintiff is entitled to judgment as a matter
of law.
The grounds upon which this motion is based are as
follows:
1. In dismissing the Plaintiff, Albert J. Ouellette,
from the meeting of the Zoning Board of Appeals, saying that
the matter was "taken under advisement" , the boardviolated
Mass. G.L. C.39 s. 23B by effectively precluding the Plain-
tiff from observing any discussion and vote by the board;
4:
2. The board violated Mass. G.L. C.39, s. 23B by fail-
ing to make public a record of the meeting within a reason-
able time following the meeting .
DDI
COMMONWEALTH OF MASSACHUSETTS 6 ,
B5SEX, ISS. SUPERIOR COURT
ALBERT J. OUELLETTE, ET AL
07
Plaintiffs
V. CIVIL ACTION NO. 1801
FRANK SERIO, JR. , RAYMOND , a-
VIVENZO, WALTER SOULE, ANN t 14 M61
O'CONNOR, AND LOUIS RISSEN �__ --�--!vt
AS THEY ARE MEMBERS OF THE
ZONING BOARD OF NORTH ANDOVER,
Defendants
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L
ALBERT J. OUELLETTE, ET AL (�
cuUl(J
Plaintiffs
-V. /'j)A'PCIV�ILL (' TION NO. 802 U
FRANK SERIO, . JR. , RAYMOND
VIVENZO, WALTER SOULS, ANNF/w O'CONNOR, AND LOUIS RISSEN ^ r "
AS THEY ARE MEMBERS OF THE ZONINGBOARD OF NORTH ANDOVER,
befendants
DEFENDANT'S OPPOSITION TO PLAINTIFF '
MOTION FOR SUMMARY JUDGMENT AND DEFEND IS
MOTION, PURSUANT TO RULE 56C, FOR ENTRY
OF SUMMARY JUDGMENT FOR DEFENDANT
The defendant, Board of Appeals of the Town of North Andover
(the "Board") , hereby opposes plaintiffs' Motion for Summary
Judgment for the reason that plaintiffs' have failed to establish
as a matter of law that they are entitled to the .relief '
requested.
COMMONWEALTH OF MASSACHUSETTS
Department of the Trial Court
i
1 Essex, ss. Superior Court M
No. 89-1802
Albert J. Ouellette
I
v
Frank Serio, Jr. , I
et als
I
JUDGMENT
This action came on for hearing before the court, Ronan, J.
presiding, and the issues having been duly heard and findings
having been duly rendered,
It is Ordered and Adjudged:
that the decision of the Zoning Board of the Town of North
Andover, be and hereby is annulled.
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The Clerk-Magistrate of the Court is directed to mail an
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attested copy of this judgment within thirty (30) days from the
date hereof, to the Town Clerk, Building Inspector and the
Zoning Board of Appeals, respectively of the Town of North Andove .
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Dated at Salem, Massachusetts , this 16th day of March, 1990.
Asses nt C1 k I '
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A r UE c®w AVEST
MWW,f�,�� ASS . CLERK
�f:LfPs� i GGA
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COMMONWEALTH OF MASSACHUSETTS
Department of the Trial Court
Essex, as. Superior Court
,i
89-1801
Albert J. Ouellette
Donna Ouellette and
�i
ii Henry B. Judge
v
I
Frank Serio, Jr. ,
et als
JUDGMENT
1 �
This action came on for hearing before the court , Ronan, J. ,
presiding, and the issues having been duly heard and findings
it having been duly rendered,
v It is Ordered and Adjudged:
that the decision of the Zoning Board of the Town of North
Andover, be and hereby is annulled.
The Clerk-Magistrate of the Court is directed to mail an
attested copy of this judgm ent within thirty (30) days from the
date hereof, to the Town Clerk, Building Inspector and the
Zoning Board of Appeals, respectively of the Town of North Andove .
Dated at Salem, Massachusetts , this 16th day of March, 1990.
1
f
Assistant Cl?rk
1
-
fo 1
i A TRUE COPY AMEST
-acVrY nss .cIRK
i'
t !� REC�IVEO
DANIEL LONG
TOWN CLERK
NORTi! ANDOVER
JUL 5 + cg PFC ONWEALTH OF MASSACHUSETTS
I�I
i
ESSEX, SS. SUPERIOR COURT DEPARTMENT
ESSEX DIVISION
CIVIL ACTION NO.
ALBERT J. OUELLETTE )
VS. )
)
FRANK SERIO, JR. , )
RAYMOND VIVENZIO WALTER NOTICE OF APPEAL
SOULE, ANNA O'CONNOR, AND )
I� LOUIS RISSIN AS THEY ARE )
li MEMBERS OF THE ZONING )
BOARD OF APPEALS OF THE )
TOWN OF NORTH ANDOVER )
Notice is hereby given that Albert J. Ouellette, the
above- named Plaintiff, hereby appeals to the Essex County
Superior Court from a decision of the Zoning Board of
Appeals of the Town of North Andover filed with the North
Andover Town Clerk on June 15, 1989 denying the Plaintiff's
request for a Special Permit from the requirements of
Section 4, Paragraph 4.122 (14) of the Zoning Bylaws. Said
request and decision are designated as Petition No. 64-89.
Attached hereto is a copy of the Complaint filed this day
in the Essex County Superior Court at Salem.
�+ Albert J. Ouellette
959Jackson
atto ey
is A. Do ing
Dated: July 3 , 1989 Str t
Lawrence, MA 01840
(508) 683-3302
it
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COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT DEPARTMENT
ESSEX DIVISION
CIVIL ACTION N0.
I
ALBERT J. OUELLETTE j
VS. )
FRANK SERIO, JR. , )
RAYMOND VIVENZIO, WALTER ) COMPLAINT
SOULS, ANNA O'CONNOR, AND ) i
LOUIS RISSIN AS THEY ARE ) i
MEMBERS OF THE ZONING )
BOARD OF APPEALS OF THE ) II
TOWN OF NORTH ANDOVER )
i,
INTRODUCTION
1. This is an appeal pursuant to the provisions of
Mass. Gen. Laws chapter 40A, section 17 of a decision of the
Appeals of the Town of North Andover.
j Zoning Board of
PARTIES
is 2. Plaintiff, Albert J. Ouellette, owns property
located at 155-157 Water Street, North Andover,
Massachusetts. He is the party aggrieved by a decision of
li
i the Zoning Board of Appeals of the Town of North Andover.
�i
� 3. The Defendants, Frank Serio, Jr. of 250 Hillside
Road, Raymond Vivenzio of 11 Appledore Lane, Walter Soule
�I of 70 Raleigh Tavern Lane, Anna O'Connor of 88 Martin
I!
Avenue, and Louis Rissin of 59 Blueberry Hill Lane, are duly
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appointed members of the Zoning Board of Appeals of the Town
i;
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ii of North Andover and are all residents of said Town.
COUNT I
4. In May, 1989, the Plaintiff, Albert J. Ouellette,
I�
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1! filed an application requesting a Special Permit from the
I
requirements of Section 4, Paragraph 4.122 (14) of the Zoning
Bylaws to permit converting a two-family dwelling into a
four-family dwelling on the premises located at 155-157
' I
Water Street, North Andover, Massachusetts.
5. Pursuant to public notice in the North Andover
Citizen, a public hearing on the application was held on
June 13, 1989.
6. At the hearing, Albert J. Ouellette addressed the
jl Zoning Board of Appeals relative to the requested Special
i' Permit.
7. Albert J. Ouellette was the only person to so
address the Zoning Board of Appeals on that issue.
i
S. A member of the Zoning Board of Appeals stated that
he would like to drive by the property in question. The
Chairman then stated that the matter would be taken under
II advisement, and directed Mr. Ouellette to leave the meeting,
and that he would be informed of the Board's decision. (See
I
Affidavit of Albert J. Ouellette, attached hereto as Exhibit
A. )
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9. Without further public hearin g the Zoning Board of
Appeals issued a decision denying Albert J. Ouellette's
request for a Special Permit. The decision is dated June
15, 1989, and was filed with the Town Clerk on that date.
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,I Certified copies of the Decision and Notice of Decision are
I� attached hereto and marked as Exhibit "B" and Exhibit "C"
respectively.
j 10. The decision of the Zoning Board of Appeals
,I
exceeded the Board's authority in that the Board made no
findings of fact that showed that granting the special
Permit would adversely affect the neighborhood.
11. The decision of the Zoning Board of Appeals
exceeded the Board's authority in that the Board made no
findings of fact that showed that granting the Special
Permit would derogate from the intent and purpose of the
governing bylaw.
12. The decision of the Zoning Board of Appeals
exceeded the Board's authority in that the Board failed to
it consider as fact the current status of the neighborhood at
I�
155-157 Water Street, North Andover.
�! 13. In failing to conduct its deliberations in public,
the Zoning Board of Appeals violated Mass. Gen. haws Chapter
I� 391 Section 23B (The open Meeting Law) and Mass. Gen. Laws
Chapter 40A, Section 15.
Il14. The Zoning Board of Appeals violated Mass. Gen.
Laws Chapter 40A, section 15, in that it failed to make a
detailed record of the proceedings relative to Albert J.
ouellette's request for a special Permit and failed to
i
indicate the vote of each member upon such questions
1 relative thereto.
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` II
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WHEREFORE, the Plaintiff requests that this Court grant
the following relief:
1. That the decision of the Zoning Board of Appeals of
the Town of North Andover be annulled; and
2. That the Court grant such other relief as may be
just and proper.
I
i
Albert J. Ouellette
By his a torney
5
Patri is A. Dowling
59 Jackson Street
Lawrence, MA 01840
(508) 683-3302
B.B.O. No. 542552
j`
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COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT DEPARTMENT
ESSEX DIVISION
CIVIL ACTION NO.
ALBERT J. OUELLETTE )
VS. )
I
FRANK SERIO, JR. , ) AFFIDAVIT OF
RAYMOND VIVENZIO, WALTER ) ALBERT J. OUELLETTE
SOULE, ANNA O'CONNOR, AND )
LOUIS RISSIN AS THEY ARE ) I
MEMBERS OF THE ZONING )
BOARD OF APPEALS OF THE )
TOWN OF NORTH ANDOVER )
I, Albert J. Ouellette, state that the following facts
are
true, to the best of my memory and understanding:
1. I own a two family home located at 155-157 Water
Street in North Andover, Massachusetts. I reside at that
address with my wife and family. I have lived in North
Andover most of my life, and I am a member of the North
Andover Fire Department.
2. Over the past ten to fifteen years, I have observed
the neighborhood surrounding 155-157 Water Street change
from single and two family homes to multi-family homes.
3. On or about May 17, 1989, I filed an application
i with the Zoning Board of Appeals of the Town of North
Andover, requesting a special Permit from the requirements
jll of Section 4, Paragraph 4.122 (14) of the Zoning Bylaw so as
to permit converting my two family home at 155-157 Water
IIStreet to a four family home.
4 . A hearing on said request was held on or about June
13, 1989.
5. Board members present at the meeting were Frank
I Serio, Jr. , Chairman, Raymond Vivenzio, Walter Soule, Anna
O'Connor, and Louis Rissin.
it6. Relative to my request for Special Permit, I was
the only person to address the Board at that public meeting.
!I
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if
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i' 7. I informed the Board that the house next door to
mine had been converted from a two family to a four family
home, and that several others in the immediate neighborhood
had been likewise converted.
8. After I finished speaking to the Board, one of the
members stated that he would like to take a drive by the
house. The Chairman then told me that the matter would be
taken under advisement, and that I was free to leave because
they would notify me of their decision.
9. There was no further public meeting of which I know
or of which I was advised.
10. I received a written decision of the Board of
Appeals denying my application for special Permit. This j
decision was dated June 15, 1989, and evidenced being filed
with the North Andover Town Clerk on that date.
11. At no time did I observe the Board to make findings
of fact relative to my request for Special Permit. Nor did
I observe a public vote taken and recorded relative thereto.
Signed under the pains and penalties of perjury this
( " day of July, 1989.
I
5
ii Albert J. Ouellette
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TOWN OF NORTH ANDOVER
�ierK.
MASSACHUSETTS
BOARD OF APPEALS
Albert J. Ouellette * Petition : 64-89
155 Water St.
N. Andover, MA 01845 * DECISION
�e
The Board of Appeals held a public hearing on Tuesday evening, June 13, 1989
upon the application of Albert J. Ouellette requesting a Special Permit from
the requirements of Section 49 Paragraph 4.122(14) of the Zoning Bylaw so as
to permit converting a two-family dwelling into a 4-family dwelling on the
premises located at 155-157 Water Street. The following members were present
and voting: Frank Serio, Jr., Chairman, Raymond Vivenzio, Acting Clerk, Walter
Soule, Anna O'Connor and Louis Rissin.
The hearing was advertised in the North Andover Citizen on May 25, 1989 and
June 1, 1989 and all abutters were notified by regular mail.
Upon a motion made by Mr. Rissin and seconded by Ms. O'Connor, the Board voted,
unanimously, to DENY the Special Permit as requested.
The Board finds that the petitioner has not satisfied the provisions of Section 10,
Paragraph 10.3 of the Zoning Bylaw and that granting this. Special Permit would
adversely affect the neighborhood and derogate from the intent and purpose of
the Zoning Bylaw.
Dated this 15th day of June, 1989.
BOARD OF APPEALS
ZSerio, Jr. •
/awt
ATTP�P:
A TWO Copy
TOM Cl**
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MUM
TOWN OF NORTH ANDOVER
MASSACHUSEMS
BOARD OF APPEALS
NOTICE OF DECISION
Albert J. Ouellette
155 Water St. Date . June 15, .1989. . . , , , , ,, ., .
N. Andover, MA 01845
Petition No.. . . . . . . . . . .
Date of HearZng. . .400— 13,: .19$9. ..
Petition of . Xlbccx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . :. . . . . . . .. . . . . . . . . . .. . . . . .
Premises affected . . . . .1,55-157. WAter.Str.Aet . . . .. . . . . . . . . . . . . . .. .. . .. . . . . . . . . ... . .. .. .
Special Permit
Referring to the above petition fqr a asnda*n from the requirements ofd.Section .4, . . . . .
Paragraph 4.122(14) of the Zoning Bylaw
. . . . . . . . . _. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . 4 . . . . . . . . . . . . .. . . . . .. . . .. .. .
so as to permit . .converting. a .two-family.dwelling.into. a A-!family. Avelling ... .. . .,,
. . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . '. ...;. .
After a public hearing given on the above date,the Board of Appeals voted to . DENY. . tbe'
Special Permit as requested
. . ... . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . .. . . .. .
Sig
• . . . . . Fra . . . erio, ,Jr.a. .rih.8. . A . . . . . . .
. . 1y�oad. .viveQa. Aati�ag. C1,a;k. . .
. . . . . . .Walter. SQuIe. . . . .. . . . . ... . . . . . . . . . . .
AT!' SI
A.Tno Copy, . . Ann*.0'C,arinor... .. . . . . . . . . . . ... . . . . .
Louis. Riasiu. .
Boad of App ok
Tom Clerk
be filed
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,SSHCNusE� bate Of 8 °t the °wn
TOWN OF NORTH ANDOVER
in the Oftic
C1eCK'
MASSACHUSETTS
BOARD OF APPEALS
Albert J. Ouellette * Petition #: 64-89
155 Water St. DECISION
N. Andover, MA 01845
The Board of Appeals held a public hearing on Tuesday evening, June 13, 1989
upon the application of Albert J. Ouellette requesting a Special Permit from
the requirements of Section 4, Paragraph 4.122(14) of the Zoning Bylaw so as
to permit converting a two-family dwelling into a 4-family dwelling on the
premises located at 155-157 Water Street. The following members were present
and voting: Frank Serio, Jr., Chairman, Raymond Vivenzio, Acting Clerk, Walter
Soule, Anna O'Connor and Louis Rissin.
The hearing was advertised in the North Andover Citizen on May 25, 1989 and
June 1, 1989 and all abutters were notified by regular mail.
Upon a motion made by Mr. Rissin and seconded by Ms. O'Connor, the Board voted,
unanimously, to DENY the Special Permit as requested.
The Board finds that the petitioner has not satisfied the provisions of Section 10,
Paragraph 10.3 of the Zoning Bylaw and that granting this Special Permit would
adversely affect the neighborhood and derogate from the intent and purpose of
the Zoning Bylaw.
Dated this 15th day of June, 1989.
BOARD OF APPEALS
gL
FraSerio, Jr.an
/awt
3'1�Awr°tib�,
•N: MMOLm :¢s
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TOWN OF NORTH ANDOVER
.� MASSACHUSETTS
BOARD OF APPEALS
NOTICE OF DECISION
Albert J. Ouellette
155 Water St. Date , ,June. 15.,, ,1989. . . . . . .
N. Andover, MA 01845
Petition No.. . . . .64-89. . . . . . ... . . . .
Date of Hearing. . .?une
Petr of . Albert, J,., ,Ouellette.. . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. . .. . . . . . . . . . . .
Promisee affected . . . . .155-157. Water.Street . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Special Permit
Referring to the above petition for a mhasn from the requirements ofd.Section .4, . . . . .
Paragraph 4.122(14) of the Zoning Bylaw
so as to permit . .converting. a .two-family. .dwelling .into. a ATfamily. Awelling . . . . . . .
After a public hearing given on the above date,the Board of Appeals voted to . DENY. . . . . : the
Special Permit as requested
. MKXX
Sdgne
Raymond, Viveozio,,. AGt�pg, Cle;lt, . ,
W<ex. �.oule. . . . : . . . . . . . . . . . . . . ... .
Anna.W C.onnor... . . . . . . . . . . . . . . . . . .
Louis. Rissin. . . . . .. . . . . . . . . . : . : . .
Board of Appeals
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TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
DIRECTIONS FOR FILING AN APPLICATION FOR TILE FOLLOWING:
VARIANCES, ANll SPECIAL PERMITS
PARTY AGGREIVED
1. Five (5) copies of the application.
2. Five (5) copies of the plot plans, one mylar and four paper.
3. Check for $25.00 for filing fee, made out to tine Town of North Andover,
4. Check for $45.00 for publishing, made out to the North Andover Citizen.
5. You, will be billed for postage for sending out Jef;ll notices 111(1 dcclaiuns;
to you and all abutters.
6. The applications must be time-stamped by the Town Clerk before acceptance
by the Board of Appeals.
7. The petitioner or a legal representative must attend the public hearing.
Should you have any questions, please call our office at 683-7105, on Monday,
Wednesday or Thursday, between 8:30 a.m. and 12.30 p.m.
I
Z
rived by Town clerk:
i
TOWN OF NORT11 ANDt]Vlilt, MASSACIIUSrTTS
BOARD OF APPEALS
"PLICATION FOR RELIEF FROM THE REQUIREMENTS OF THE ZONING ORDINANCE
+pplicant /j�r Address
Application is hereby made:
a ) For a variance from the requirements of Section Paragraph
and TabLe __of the Zoning By Laws .
b) For a Special Permit under Sect ionYL21Paragraph I Iof the Zoning
By Laws .
c ) As a Party Aggrieved , for review of a decision made by the
Building Inspector or other authority.
a ) Premises affected are land---and building(s ) numbered
_ —_
. b) Premises affected are property with frontage on the North (X)
South ( ) fast ( ) West ( } side of _ 1% ,�, T, ____
Street , and known as No. _ _A- 15_� J �' Street_
C ) Premises effected arc in 'Zoning District-R4iJ, and the premises
affected have an area of r$ square fet rr
and frotaye of
p0 ' feet . - __ e
Ownership
a ) Name and address of owner ( if joint ownership, give all names ) :
Date of Purchase--__-_ Previous Owner
b) If applicant is not owner , check his/her interest in the premises :
Prospective Purchaser Lesee Other (explain )
r Size of proposed building _ _ front; feet deem;
" Height stories; V fee-t .
a ) Approximate date of erection:
b) Occupancy or use of each floor :
c ) Type of con>tr. uction:
Size of exist: inq buildinq: _j (, feet front ; 5q
height stories, _-> --_icci --------
a )
- - -a ) Approximate date of erection :
b) Occupancy or use of each floor :��� „__;
'c ) Type o f cons t r uc t i on:
iias there been a previocas appeal , under zoni.nd , on these premine,?
If so, when?
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R' Description of relilef sought • on !this petition '.
8. Deed recorded in the Registry of Deeds in Book "J2g6 Page
Land . Court Certificate No. Book 'rrge
The principal points upon which I base ,my application are as follows ..
(must be . stated in detail )
r �
E agree to pay the filing fee, advertising newspaper,,in news a er and incidental
expenses* t
Signat e of Peti tioter (s) ,.
:ver a r
y pPlication for action b the Board shall be made oil a form approved
,y• the Board . These forms shall be furnished by the clerk upon request .
.ny communication purporting to be an application shall be treated as mere
otice of intention to seek relief until such time - as it is . made on the ,
fficial application form . AIL information 'called 'for by the form shall
e furnished by the applicant in the manner 4herein,;:prescribed ,
very-application shall be submitted with a list of '•"Parties In Interest" .
hich list $hall include .tile Petitioner , abutters , owners of land directly
pposite on any public or private street or way, and abutters to .the
{ outters ,'Within : three hundred feet ( 300 ' ) of the property line of the
:titioner as they appear , on the most recent applicable tax list,
3twithstanding that the land of anysuch owner is located in another city
town, the Planning Doard of the city or town, , and the Planning Board of
rery, abutting city or town . ;.i.
.very application shall be submitted with an application charge cost in
ie amount- of -$2.5 . 00. In addition, the petitioner shall be responsible
>r any and all costs involved in bringing the petition before the Board .
ich costs shalL include mailing and publication, but are not necessarily,:':',..,,
mited to these .
cry application shall be submitted with a plan of land approved by the
ard.� No petition will be brought before the Board unless said pian has
en submitted . Copies
of the
P Board ' s re ui emen
q ,r is regarding plans are •
tached hereto or are available from the Board of Appeals upon request .
LIST OF PARTIES IN INTEREST '
Name Address
(use additional sheets if • necessary ) ` �