HomeMy WebLinkAbout2001-02-05r:~-u[-~uu] N~p 12:39 ?~ F~X NO, 6]72273361 ?, 01
NEWMAN & NI::'WMAN, P,C,
ATTOrNEyS AT LAW
February 7, 2001
BY FAX AND MAIL
(978-688-9556)
Joyce A Bradshaw, Clerk
Town of North Andover
120 Main Street
North Andover, MA 01845
Re:
Rocket Entertainment, Inc.
V.
Vivenzio, et al.
Land Court No. 269389
Dear Ms, Bradshaw:
RECEIVED
JOYCE BRADSHAW
TOWN CLERK
NORTH ANDOVER
ZOOI FEB -'1 P I: 1.12
Rocket Entertainment, lnc. has appealed the decisibn of the Zoning Board or'
Appeals denying the special permit. ! have enclosed a copy of the complaint thai was
tiled in the Land Court on February 5, 2001.
Yourstmly,
Richard A. Freedman
RAF/nt
eric.
ESSEX, SS.
COMMONW~LTH OF MASSACHUSETTS
ROCKET ENTERTAINMENT, INC,
LAND COURT
MISC. NO. 269389
RAYMOND A. VIVENZIO, ROBERT FORD, JOHN PALLONE,
ELLEN MClNTYRE, GEORGE M. EARLEY and WALTER SOULE, as they are members
of The Zoning Board of Appeals of North Andover
I. Rocket En'certainment, Inc. ("Rocket") is a Mass~husetts corporation with a usual
place of business at 210 Holt Road, North Andover, Massachusetts,
2. F~ymond A. Vivenzio resides at I I Appledore Lane, North Andover,
M~ssachusetts. He is the acting chairman of the Zoning Board of Appeals of North Andover
("the Board").
3. Robert Ford resides at 89 Bear Hill Road, North Anclover, Massachusetts. Me is a
member of the Board.
4. John Pallone resides at 67 Vest Way, North Andover, Massachusetts. He is a
member of the Board.
5. Ellen Mclntyre resides ar 23 Tanglewood Lane, North Andover, Massachusetts.
She is ~ member of the Board.
6. George M. Earle/resides at 125 Lyman Road, No"ch Andover, MassachuseEs.
He is a member of the Board.
7. Walter Soule resides at 70 Raleigh Tavern Road, North Andover, Massachusetts.
He is a member of the Board.
8. Rocket submitted ~n application to the Board for a special permit under Section
8.8 (Adult Use Zone) of the North Andover Zoning Bylaw.
9. Section 8.8 of the North Andover Zoning Bylaw was created and approved on
May 6, 1996 at the Annual Town Meeting. The said section created an Adult Use Zone ("the
Zone"). as an overlay district in an Industrial 2 District,
I 0. . The Zone consist~ of approximately eleven (I I) acres on a portion of Holt Road.
The current uses within or adjacent.to the overlay district include trucking and truck storage, a
recycling center, an automotive paint and body shop, an incinerator and an airport, There is no
Residential Zoning District or "church, school, park, pla/field, or other location where large
numbers of minors regularly congregate" within 500 feet of the Zone. There is no
establishment licensed under G. L.c. 38, § 12 within 300 feet of the Zone.
9. Following a public hearing on January 9, 2001, the Board denied. Rocket's
application. The Board's Notice of Decision was received by the Town Clerk on January 18,
2001. A copy of the said decision certified by the Town Clerk is attached hereto as Exhibit A.
I 0. The Board's decision was not on the merits'of the application, but rather on
alleged deficiencies in the application and presentation as stated in the Notice of Decision.
I I. The alleged deficiencies concerned either: (a) facts already known to the Board
(e.g. that the proposed adult use would not be located "within 5{)0 feet of a Residential Zoning
District or within 500 feet of any church, school, park, playfield, or other location where large
numbers of minors regularly congregate"); (b) matters'which Rocket was not required to
2
present to the Board or which could have been proven at the hearing if the Board had answered
Rocket's repeated inquiries about unspecified deficiencies in the application alluded to several
times by one or more members of the Board; or (c) matters which Rocket could not reasonably
have expected would be required by the Board because they were not included in the
application form or in any rule or regulation of the Board.
12. The Board's decision wu unreasonable, whimsical, arbitrary, and/or capricious
and exceeded the Board's authority.
WHI~REFORE, Rocket Entertainment, Inc. prays that the decision of the Zoning Board of
Appeals of North Andover denying the application for a Special Permit pursuant to Section 8.8 of
the Zoning Bylaw be annulled.
ROCKET ENTERTAINMENT: INC.
By its attorney,
Richard A. Freedman
BBO # 178700
Newman & Newman,
One McKinley Square
Boston, Massachusetts 02109
617-227-3~161
NORTI:I ANDOVER
OFFICE OF
T[IE ZONING BOARD OF APPEALS
27 CHARLES STREET
NORTI-[ AN'DOVER, MASSAC[~SETTS 0
?, 05
RECEIVED
JOYCE BRADSHAW
TOWN CLERK
NORTH ANDOVER
ZOOl JAN 18 P 12:
FAX (978) 68R-9542
date ~f flllne of thl~ notice
In the olive of the. Town Clerk.
Notice of Decision
Year 2001
Property at: 210 Holt Road
NAME: Rocket Entertainment, Inc, DATE: January I0,' 200t
ADDRESS: 210 Holt Road (Iota 3 & ~) PETITION: 048-2000
North Andov~, MA 01845 HEARING: 1/9/2001
BOARD OF .~.BPEALS 688-9541
The North Andover Board d Appeals held a public hearing at its regular meeting on Tuesday, January g,
2001 at 7:30 PM upon the application of Rocket Entertainment, Inc., 210 Holt Road, (lots 3 & 4) North
Andover, MA for a
Special Permit from Section 8.8, Paragraph 1, ADULT USE ZONE, and such ancillary paragraphs of section
8.8 and 221.2 as may be applicable hereto. Said premises affected is property w~t.h frontage on the East
side of Holt Road within the {-2 AUZ Zoning Oistdc[
The following members were present; Raymond Vivenzlo, acting Chairman; Walter Soule, acting Clerk;
Robert Ford, John Pallone, Ellen Mclntyre and George Earley.
Deliberations centered on the multiple deficiencies In the petitioner's application and presentation. Member
Robert Ford stated that because Cna evide~e Submitted did not address the issues that must be addresseci
under Section 8.8 of the Zoning Bylaw, he would not seek to have the 8nard take the matter under
advisement.
Upon a motion made by George Earley and 2~ by John Pallone, the Board voted to DENY the application
for all of the following reasons;
Section 88.2 (a) ~ no evidence was presented that the proposed adult use will not be Iocatec~ within 500'
feet of a Residential Zoning District or within 500' feet el any church, schooL park, playfieid, or c~h, er location
where large numbers of minors regularly congregate;
Section 8.8.2 (c) - Ilo evidence was presented that the proposed adult use will not be located wtthin 300'
feet of any establishment licensed under MGL Ch. 138, Sea. 12;
Section 8.8.4 (a) - the evidence submRted on the petitioner's plan shows parkJng In the rear yard, whereas
this zoning provision tim~fs parking tO side and front yards c~ly. While the entrance to the proposed
structure may be located on the side of the buJIding, the entrance has no beadng on the definition of side,
lront or rear yards. See Sections 2.71, 2.72, 2.73 arid 2.74 et t~te Zoning Bylaw. The applicant fai~s to
comply with Section 8.8.4 (a).
ACP'I~E ST:
Page 1 of 2 A TrUe (Dopy
BUILDINGS 6a8-9545 CONe, ERVATION 688.9530 H[ALTH 688.954U PL.~NNI.~ig~rk
EXHIBIT A
FaX NO, 6172273361
?, 06
Continued page 2 of 2 - Rocket Entertainment, Inc.
RECEIVED
JOYCE BRADSHAW
TOWN CLERK
NORTH AROOVER
Section 8.8.4 (bi - insufficient evidence ~f adequate illumination
Board was not provided with adequate lighting details of the kind and amount of lighting that will be
provided. No evidence was submitted that the pr~oosed lighting is contained on the property, nor was any
lighting shown for the parking area immediately in the front of the building adjacent to the structure The
applicant fails to comply with ~ection
Section 8.8.4 (c) - requires a minimum 5' fat wide landscaped bur/er or a 6' foot fence along the side and
rear property lines. No evidenoe of compliance with this provision was submitted, the proposed plan
showing trees only along only one sideline {east) and a portion of the rear property Line.
Section 8.8.5 - regarding the screening of a~l building openings, entries and windows; only 2 sides of the
building are shown on the plan, and no evidence or elevations were submitted as to the other 2 sides not
shown on the plan. 3'he applicant fails to comply with Section 88.5.
Section 8.8.9 - no evidence was submitted that the principals have not been convicted of ceKain offenses
noted in this section, i.e, MGL, Ch. 119, Sec. 63 and MGL, Ch. 272, Sec. 28.
Section 8.8.7 (e) - Other than' the one (1) paragraph description of proposed security contained in the
application, no evidence was presented that such measures are reasonable and adequate. With such lack
of derail anc~ lack o~ professional testin~ny as to its adequacy for this proposed large facility, the Board is
unable to reach any conclusion c~ncemlng public safety and whether adequate and appropriate facilities
would be provided for the proper operation of the proposed use. See Section 10.31 el' the Zoning Dylaw
The Police Chiel testified that he was' unable to evaluate the applicants proposed security measures with the
information provided.
Section 8 8 11 - The wdtten application contains no reference to licenses in its possession or intended to
be obtained The applicant states that a liquor license is an integral part of its proposal· The applicant has
failed to demonstrate that adequate sat'eguards exist through licensing or other means to assure that
activities therein will not be patently contrary to prevailing standards of adults in the community, and will not
involve minors in any way. In view of the evidence submitted by the liquor Licensing Chairman who was
present at the hearing In opposition to the petition, nam~y, that at Town Meeting Jn 198~, the provisions of
General Laws, Chapter 138, Section 126 were adopted by the Town, which statute p[ohibits nudity on
premises where alcoholic beverages are served, the applicant offered no evidence whatsoever of its
entitlement or tikelihood of success in obtaining a liquo~ license, as its proposal contemplates nude dancing.
On its fa~e, the law in question prohibits licensing et the applicant, Applicant's response thereto was to refer
to an earlier decision of the Supreme Judldal Cou~ in the 'Golden Banana' case, where existing licensees
had their lioenses revoked after adoption of General Laws Chapter 138, Sec. 120, and later such licenses
were reinstated by the Court. Board members felt that such reference to this decision of the Court was not
pertinent, as t~e applicant is not an existing lioense holder. The applicant fails to ~x'nply with Section
8 B.11.
Section 10 31.1 (c) - no evidence by way of traffic study or otherwise was sui~mirted to the Board, in order to
permit a determihafion that there will be no nuisance or serious hazard to vehicles or pedestrians. The
applicant foil's to comply with this section. See also Sect[on 1.4 of the Zoning Bylaw.
The Board further notes that the plan fails to contain a legend identifying many et the objects depicted
thereon.
Mr. ~ule abstained from voting in this matter.
Voting in favor of the DENIAL: Raymond Vivenzio, Robert Ford, John Pallone, Ellen Mclntyre and George
Earley.
Mi/decisions 20011 2&3 acting Chairman