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HomeMy WebLinkAbout1950-08-11 ! '~ ~EETINC,~ H ~,r~ · yj~ ~i~ or Motrin TOWN PLANNING BI]AP B OF NORTH ANDOVER MASSACHUSETTS August 16, 1~50 Tow~ John J. Lyons, Town Clerk Town Building North Andover, Massachusetts Re: Petition of Alfred H. McKee Dear Sir: The North Andover Planning Board herewith presents its final report in the matter of the petition of Alfred H. McKee, requesting an amendment of the Zoning By-Laws of the Town, under Chapter 40, Section 27, General La~vs (Te. Ed.), in order to change the classification of a parcel of property located at 30 Church Street from a General Residential to a Business District, to enable the petitioner to establish and maintain a funeral home at said location. The Board held a Public Hearing on this petition on Friday evening, August 11, 1950, at the Town Building, and after due deliberation, submits in this report its recmmendation to the Town Meeting, that the petition to have the classification of 30 Church Street changed from a General Residential to a Business District be denied. In reaching this decision the Board was mindful of certain considerations advanced by the petitioner or proponents to his cause at the hearing, which favored granting a recommendation for the change, namely; that there is need in the Town for this type of business; that the proposed location is near a church and would prove convenient for ~y people; that it would financially benefit the petitioner to utilize his home for a funeral establishment, for which purpose it is understood the house from the nature of its construction would lend itself suitable for this purpose. The Board, however, was impelled to give due consideration and weight to other aspects of this matter, which in its opinion, were of prime importance in the final determination of the issue, viz. s , FI{IST I;'RIDA¥ OF MONTH TOWN PLANNING BI]A I] OF NORTH ANDOVER MASSACHUSETTS Tow~ Chu~Uh Street has remained in a General Residential District since the adoption of the Zoning By-Laws by the Town in 1943; this street and the surrounding area was a purely residential district prior to the adoption of the By-Laws and there has been no change in the character of the district nor encroachment of business upon it since that time; that the n~ighborhood is made up of good homes which would suffer substantially in value if a funeral home were to be established at that location; and that a change of classification of this property in an area where the surrounding properties are similar in type and kind and ca~y the burden of uniform restrictions, would result in giving it preferential treatment and create a typical case of so-called "Spot-Zoning".,/ In reaching its conclusion on the basis of the above determined facts, the Beard has been guided necessarily by these aspects of the law which are applicable to it: 1: The intent and purpose of zoning law which as expressed by Chpater 40, is "to promote the health, safety, convenience, morals or welfare of its inhabitants". The Board finds that the change requested by the petitioner would not serve any of the above purpose of the law, but on the other hand would by reason of Church Streetbeingquite narrow in width, serve to create hazardous traffic conditions. 2: The requirements in enforcing this law is as stated in section 27, of Chapter40, that .... "all such regulations and restric- tions shall be uniform for each class or kind of buildings, structures or lands and for each class or kind of use, throughout each district...". It is clear that the approval of a change of zoning in this case would he in violation of this provision of the law. 3: The interpretation of the zoning lawbythe Supreme Judicial Court of Massachusetts in its numerous decisiom~. In this respect, Counsel for several of the opponents to this petition, cited the case of Leah~ vs. Building Inspector, New Bedford (308 Mass.128), a leading case on this point. As bearing on this point, the Board further cited the case of Smith vs. Board of Appeals, Salem (313 Mass. 622), where upon a change being approved to the zoning by-law so as to create in a general resi- dential district, a single property as a new zoning district called "Funeral Home District", the Supreme Court ruled. ~EETING$ HELD :F~.~T ~RIDAY OF MONTH TOWN PL, NNINI] BgAP D OF NORTH ANDOVER MASSACHUSETTS ~ F-/-~F-~'T M AN ~$ OFFICIg, ....... "However desireahle it may have ~eemed that Murphy should have a funeral home at this particular site.... the creation of this new district. .... is unreasonable and capricious and beyond the power conferred. This is a plain case of what has come to be called "spot- zoning". In view of these facts as above stated and of the law applicable to its the Planning Board herewith reco~,ends that t this petition be denied. Respectfully submitted, PLANNING BOOTH ANDOVER / * Peter Ritchie~ Chairm~n Richard G. Whipple, Secretary Gregory Mooradkanian Lyman H. Eilton, Jr. Edwin Reinhold ~'M ~Tm~S H~co PLANNING BI]At B TOWN OF NORTH ANDOVER MASSACHUSETTS S~'TMAN '$ Tow~ ~ntle~nf ~he ~orth And~v~r Planning ~ horeuith presents its final report in the ~atter of the petitioa ef Alfred H. McKee, re- qasoting an mndment ~f ~ ~eniag B~-La~ ef the T~wn, m-~er Chapter ~0, Section 27, ~oneral L8~s (Ter. Kd. )~ in order to ehange the alaoLt- fication of a parasl of property located at 30 ~ Street fro~ a ~neral I~aiden%ial tea Bu~ineas District, t~ emable the petitioner t~ est~blilh a fuueral h~e at said l~cation. The Board held a Public ~earing on this petition en Frida~ evening, August 11, 1950, at the Town Building, and after due deliberations submits in this report its recoumendation to the Teun ~eetings that the petition to have the clas$i£ication af ~0 Churoh Street ehanged fr~ a ~eneral P~sidential t~ a Business District he denSed, In reaching this decision the Board was mindful ~f c~tain eon~iderations advanced By the petitio~r 0v p~pon~nts to his cause at the hearing, which favored grantA~ a receemendation for the change, na~e~VI that there is need in the Town lot this type of bulines81 that the proposed location is near a charch an~ would pro~ convenient for ~ people; that it would financiall~ benefit t~e petitioner to utilize hie home for a funeral eatablishumnt~ for which purpose it is undor~tood, the house from the nature of its oonatruction w~uld lond itself rditably foF thio p~rpose. The ~rd, however, was in~elled to give due recegnition and wight te other aspects of this rotter, which in its opinion, wer~ of primo iu~ortance in the final detereAnati~n of the issue, viz.~ Church Stree% ha~ remained in a 6eneral Residential District since the adoption of the Zoning TOWN PLANNINI] BOA,q.o OF NORTH ANDOVER MASSACHUSETTS Town B~ILDINO B~-Ltwo by the Town of ~mth Andover in 1~43J this street and tho ~z~u~ing area was a purely residential district prior to the adoption of the ~-Lawo and there has been no ohenge in the ehar~ter of the diet,itt ~o~ encroachment of business upon it since that ritual that the neigbborheod is made up of good hones which weuld suffer subet~ntially in value ~ a funeral homo were to he established at that locations and +.hat & change o$ claesificatAon of th~ property in an area where tho mLTTounding properties are similar in type and kind and carry the burden of uniforu restrictions, would re~lt in giving it preferential treataent and areate a typical case of so-called S8pot-~oning% ~n reaching its ~enclusion en the basis of the above determined fzote, the Board has been guided necessarily by these aspects of the law whic~ are applicable to itl 1~ The intent and purpose of sening le~ as e~presoed b~ Chapter is ~te prezote t~e healthp safety, c~nveaience, ~ral~ er welfare of its inlM~tterrbo.. The ]~oard ~nd~ that the change requested by the petitioner would serve mens of the above purpose of the law, but on the other hand would by reason of Church Street being quite na~re~ i~ridth, serve to create hazardous traffic condition~. 2, The requirements in enforcing this law is aa stated in section 27 of ~hapter 40, that....,all such regulations and restrictions shall be uniform for each class or kind of buildinge~ structures or lan~ and f~ each class er kind of use, throughout each district....#. It is clear that the a~preval of a change of zoning in this case would be in violation of this provision of the law, 3f The interpreter&on of the soning law by the ~uprem Judicial Court of Massachusetts in its numerous decision~. In this respect~ Counsel for the several of the opponents to this petition, cited the case of Leah~ va, Building ~nspeeter, New Bedford (30§ Mass, 128)~ i leading case ~n this peint, A~ belting on this point, the Board further cited the ca~e of S~ith va. Board o£ Appeals, S=_lem (313 usa. 622), where upon a change being ap~oved to the zoning by-lawa 8o aa to create in a general residential district, a single pro- per~ as a new zoning district called #l~ne~al Home DistrictU) tho ~uprem Court ruledt · ....uP~uever deoireable it m~ have seemed that M, rp~ should have a funeral hobs at this particular site....tho creation ed thio new distri~t. .... is unreasonable and onprieious and beyond the power conferred," . ~ MEE~tr~GS TOWN OF NORTH ANDOVER MASSACHUSETTS SELECTMAN'S TOW~ In view of the ff~t~ f~ above stated ami of the 1~ applicable to it, tho ~lannfl~ Ibird hsre~th reeetmnds thit this potit~on be denied.