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HomeMy WebLinkAboutLegal Document - 250 BRIDLE PATH 5/14/2002 URBELIS &FIELDSTEEL, LLP 155 FEDERAL STREET BOSTON, MASSACHUSETTS 02110-1727 THOMAS J.URBELIS Telephone 617-338-2200 Andover e-mail tju @ufb.com Telecopier 617-338-0122 Telephone 978-475-4552 May 14, 2002 North Andover Planning Board Town of North Andover R EC E !,7 R 27 Charles Street North Andover, MA 01845 MAY 1 5 2002 RE: KUCHARZYK V. PLANNING BOARD OF NORTH ANDOVER N 0 P I r; LAND COURT DOCKET NO. 249120 t'LAiWh9IN(-i ,ti�i'plh i EI'JT Dear Members of the Board: Enclosed please find copies o£ 1. Planning Board Decision dated June 9, 1998 relating to Lot 20A Bridle Path; 2. Decision of the Land Court; and 3. Judgment dated May 9, 2002. As you can see, the Court upheld the Board's decision denying the special permit. The plaintiff has until June 10, 2002 to file a Notice of Appeal. Please call if you have any questions. Very truly yours, N Thomas J.Ze41is Enclosures TJU/lah cc: Board of Selectmen Mark Rees Heidi Griffin Conservation Commission John Chessia D. Robert Nicetta Joyce Bradshaw s:\%vp51\work\n-andove\kucharzy\planninghowd.ltr.doc '...... Town of North Andover at N�RTk r OFFICE OF C®MIYIUNITY DEVELOPMENT AND SERVICES 30 School Street � " ' WILLIAM I.SCOTT North Andover, Massachusetts 01345 ss^ us �ts Director MAY �(j�d;i L (NOTICE OF DECISION Z Cl , c-n �., = aoo-; M , ,., id 1 �'T'� Any appeal shall be filled within (20) days after the date of filling this Notice in the Office of the Town m M'T Clerk. ; Date June 5, 1998 Date of Hearing 3/17/98, 4/21/98, 5/19/98, 6/2/98 Petition of Henry Kucharzyk Premises affected. Lot 20 A Bridle path Referring to the above petition for a special permit from the requirements of the North Andover Zoning Bylaw Section 4-133 (watershed protection d.istrl.c-t) so as to allow to construct a. single family residential dwelling within 100 linear feet horizontally from the edge of the tributary to Lake Cochichewick .After a public hearing given on the above date, the Planning Board voted to Deny the Watershed - Special Permit based upon the following conditions: Signed CC: Director of Public Works Richard S.Rowen, Chairman Building Inspector Natural Resource/Land Use Planner Alison Lescarbeau, V. Chairman Health Sanitarian ' Assessors John Simons, Clerk Police Chief Fire Chief Richard Nardella Applicant Engineer Joseph V. Mahoney ��`'�' Towns Outside Consultant File Planning Board Interested Parties CONSERVATION-(978)688 9530 HEALTH-(978)688-9540 PLANNING-(978)688-9535 *14 TITT nINl n1717T!'R -I"Q N 4 94 09.14 • *7nVTNLt n n A 1)n nI? A1)P4AT C 10.79%6911-04A-1 • *714 ,%4A/N STRRKT Town of North Andover 4 NORTH OFFICE OF COMMUNITY DEVELOPMENT AND SERVICES - 30 School Street WII LIAM J. SCOTT North Andover,Massachusetts 01845 9S ACHUS Director - June 9, 1998 Ms. Joyce Bradshaw Town Clerk 120 Main Street North Andover, MA 01845 Re: Watershed Special Permit-Lot 20A Bridle Path Dear Ms. Bradshaw, The North Andover Planning Board held a public hearing on Tuesday evening March 17, 1998 at 7:30 p.m. in the Department of Public Works, upon the application of Henry Kucharzyk, P.O: Box 1701, Lowell, MA 01853 requesting a special permit under Section 4.133 watershed special permit of the North Andover Zoning Bylaw. The legal notice was properly advertised in the North Andover Citizen on February 25 &March 4, 1998 and all parties of interest were duly notified. The following members were present: Richard Rowen, Chairman, Alison Lescarbeau, Vice Chairman; John Simons, Clerk, Joseph V. Mahoney, Richard Nardella and Alberto Angles, Associate Member. The petitioner was requesting a special permit to allow to construct a single family residential dwelling within the 100 linear feet horizontally from the edge of the tributary to Lake Cochichewick. The premises affected is land numbered Lot 20A Bridle Path and shown on Assessor's Map 104 as Lot 82 in the Residential - 1 (R-1) Zoning District and the Watershed Protection District. Atty. Mike McCarron and Phil Christiansen were present to represent Lot 20A Bridle Path. Mr. McCarron stated that they are grandfathered under the 1979 Zoning Bylaw: Mr. McCarron stated that this lot was part of the Bridle Path subdivision. There were lot line changes that took place in 1978. As of August 1, 1979 Lot 20A was in separate ownership but, was not part of the subdivision. In June of 1978 the first Watershed Protection Bylaw came into affect. Mr. McCarron stated that this was not part of this lot because it had a zoning freeze. Mr. McCarron went over property ownership of the lots with Mr. Simons. Mr. McCarron stated that the only thing that comes close is a swamp and they have gone to ConCom and applied for an RDA for the wetland lines and they have been approved. The proposed home, driveway and lawn are within 100' of a wetland and are within 235' of a tributary to the lake. The driveway is 25' away from a wetland and the house is 50' from a wetland. Mr. Rowen states that not even with a variance could you build this. Mr. McCarron stated he knows. Mr. Nardella had concerns with the runoff on the property. Mr. Christiansen stated that we can.address that for the next meeting. .Ms. -:::. l� - HOARD OF APPEALS 683-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING-688-9535 Colwell stated that there is no final grading on the plan, no limit of clearing, no control of storm water shown or proposed, no certification from an engineer that there will be no effect on the lake, need to show the tributary on the plan, no erosion control shown and the 25' no cut and 50' no build zones not shown properly on the plan. Mr. Simons asked why they never built on the property. Mr. McCarron stated that it is a hard lot to fit a septic system on and now they can tie into sewer. Mr. Simons stated that you had many choices on how the lots were laid out and.when you build on them. Mr. McCarron stated that it was a buildable lot when it was created. Mr. Simons stated that we never granted a Watershed Special Permit that close to the wetlands before. Linda Weeks of 148 Bridle Path stated that we're not even on sewer and the Town has said that we won't be for 1-2 years. The Board stated that it would be part of their decision. Ms. Lescarbeau believes that the driveway could be relocated. Ms. Colwell received a letter from Town Council stating that the applicants were in fact grandfathered under the old zoning. Continued until April 21, 1998. The North Andover Planning Board held a regular meeting on April 21, 1998. The following members were present: Richard Rowen, Chairman, Alison Lescarbeau, Vice Chairman, Joseph V. Mahoney & Alberto Angles, Associate Member. Kathleen Bradley Colwell, Town Planner was also present. Continued until May 19, 1998 The North Andover Planning Board held a regular meeting on May 19, 1998. The following members were present: Richard Rowen, Chairman, Alison Lescarbeau, Vice Chairman, John Simons, Clerk, Joseph Mahoney& Richard Nardella. Kathleen Bradley Colwell, Town Planner was also present. Attorney Michael McCarron went over the prior information for this filing. Phil Christiansen of Christiansen & Sergi, went over the revised plans. Mr. Christiansen stated that a force main would be installed to tie into the Town's sewer system. Mr. Christiansen stated that the force main will be placed at Bridle Path and Timber Lane and connect into the existing sewer manhole at the intersection of Timber Lane and Brentwood Circle. Mr. Rowen asked if this would be the only house on Bridle Path on sewer. Mr. Christiansen stated yes. Mr. Rowen asked which way the driveway flow. Mr. Christiansen stated downward toward the wetland. Ms. Colwell stated that she is concerned with the drainage on the site. Mr.Nardella stated that he would like to see an oil trap on the site. Mr. Christiansen stated that they can add oil traps to the plan. Mr. Simons asked if they have a letter stating that there will not be an effect on the water quality. Mr. Christiansen went over his theory on water quality. Mr. Nardella asked if there were roof drains. Mr. Christiansen stated that there were. Ms. Colwell asked why they have railroad ties. Mr. Christiansen stated that they are part of the state storm water management requirements however they would not-use old railroad ties but would use wooden boards. Mr. Christiansen went over the location of the railroad ties. lair. Christiansen stated that they would put in the oil sump, and a berm to protect street runoff from going down the driveway for the next meeting. Continued until June 2, 1998. The North Andover Planning Board held a regular meeting on June 2, 1998. The following members were present: Richard Rowen, Chairman, John Simons, Clerk, Joseph Mahoney, Richard Nardella and Alberto Angles, Associate Member. Kathleen Bradley Colwell, Town Planner was also present. Ms. Colwell stated that Ms. Lescarbeau could not make it tonight but, wanted the Board to know that she is not in favor of this special permit. Mr. Simons asked how many feet are they away from wetlands are they. Ms. Colwell stated that they are 50' away. Ms. Colwell went over the definition of a tributary and the special permit definition from the 1979 bylaw. Mr. Rowen stated that it is clearly a good spot.for a house and there is no affect to the neighborhoods property and they have added oil traps and berms to the plans. Mr. Rowen stated that he feels they have put in the appropriate requirements for the 1979 bylaw. Mr. Simons stated that he feels the same as Ms. Lescarbeau and does not feel that Mr. Christiansen has addressed the water quality issues. Mr. Simons stated that they never talked about fertilizers. Mr. Simons stated that he feels that the Board can deny this under the 1979 bylaw. Ms. Colwell stated that they did not go before the Zoning Board of Appeals to relocate the house. Mr. Rowen stated that it is a left over lot because they could not fit the septic system but now they can get sewer on the property. Mr. Simons stated that he does not feel that the applicant went beyond what he should have. Dave Zaloga stated that they did have an approved septic system and the original developer owed Henry money and the only way Henry could get paid was to get this Iot. W. Zaloga stated that there was no intent to force anything down the Boards throat. Mr. Zaloga stated that it was a buildable lot and Henry was told to wait until sewer came down. Ms. Colwell stated that as of 1987 this lot was not acceptable because there was no septic systems allowed in the watershed. Mr. Mahoney stated that he does not feel that it will have a big impact on the lake. Mr. Angles stated that he did not feel comfortable voting on this because he was not at the last meeting to hear what was talked about. On a motion by Mr. Mahoney, seconded by W. Angles the Board voted unanimously to close the Public Hearing. On a motion by Mr. Mahoney, secdnded by Mr. Nardella, the Board voted 3-1-1 for the special permit for Lot 20A Bridle Path as presented. The motion to approve Lot 20A Bridle Path failed. Attached are the conditions. Sincerely, Richard S. Rowen, Chairman North Andover Planning Board A:,77 A Tinae CC r�. ` Lot 20A Bridle Path Special Permit- Watershed Protection District The Planning Board makes the following findings regarding the application Henry Kucharzyk, HEFCO .Realty Trust,P.O.Box 1701,Lowell,MA 01853, dated January 29, 1998,requesting a Special Permit under Section 4.133 of the North Andover Zoning by-law in effect in on August 1, 1979, to construct a single-family dwelling within 1.00' of a tributary to Lake Cochichewick_ FINDINGS OF FACT: Based upon an opinion from Town Counsel, Lot 20A is a grandfathered lot under Paragraph 4 of Section 6 of MG.L. c. 40A.. Therefore the North Andover Zoning By-law adopted in 1979 applies to this lot. In accordance with Section 10.31 of the North Andover Zoning Bylaw in effect in 1979, the Planning Board as the Special Permit Granting Authority shall not approve any application for a Special Permit unless it finds that in its judgement all the following conditions are met: A. The specific site is an appropriate location for such a use,structure or condition; The Board finds that this specific site is not an appropriate location for the construction of a single family home, and driveway as the home is located only fifty feet from the edge of the tributary as defined in the 1979 Bylaw. The applicant made no attempt to seek a variance from the Zoning Board of Appeals to place the home closer to the street and adjacent lot to move the home further away from the tributary. B. The use as developed will not adversely affect the neighborhood; The Board finds that the use as developed will adversely affect the neighborhood. One of the primary sources of elevated suspended solids,nutrient, and bacteria concentrations in the Lake is the erosion of soils in areas of new construction. The construction proposed for this site is only fifty feet from the edge of the tributary, a sufficient buffer has not been preserved to protect the tributary from the erosion of soil. C. Adequate and appropriate facilities will be provided for the proper operation of the proposed use; The Planning Board finds that adequate and appropriate facilities have not been provided for the proper operation of the proposed use. Sufficient information has not been provided demonstrating that the operation of the proposed use will properly protect the Watershed. D. The Special Permit Granting Authority shall not grant any Special permit unless they make a specific finding that the use is in harmony with the general purpose and intent of the North Andover Zoning By-law. a e The Planning Board finds that the use is not in harmony with the general purpose and intent of the North Andover Zoning Bylaw as all feasible steps to protest the Watershed have not been taken. CONCLUSION: The Planning Board finds that this project does not meet the above referenced conditions therefore the Board herein denies this request for a special permit_ The following plan shall be deemed a part of this decision: a) Plan titled: Plan of Land located in North Andover, Mass Prepared for: Henry Kuckarzyk Scale: 1"=40' Prepared by: Christiansen&Sergi 160 Summer Street Haverhill,MA 01830 cc. Director of Public Works Building Inspector Health Agent Assessor Conservation Administrator Police Officer Fire Chief Applicant Engineer File Lot 20A Bridle Path-Watershed y r 201-1 COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT ESSEX, ss. MISCELLANEOUS CASE NO.,249120 HENRY KUCHARZYK, TRUSTE of HEFCO ) REALTY TRUST ) Plaintiff, ) V. ) RICHARD S. ROWEN, ALISON LESCARBEAU, ) JOHN SIMONS, RICHARD NARDELLA and ) JOSEPH V. MAHONEY, as they constitute the ) PLANNING BOARD of the TOWN of NORTH ) ANDOVER, ) Defendants ) DECISION In this action brought pursuant to G. L. c. 40A, § 17, Henry Kucharzyk, as Trustee of the Hefco Realty Trust(Plaintiff), appeals a decision of the Planning Board of the Town of North Andover(Board), denying his application for a special permit. Plaintiff owns a lot of land shown as Lot 20A on Bridle Path Road.in North Andover (Locus). By his application, Plaintiff seeks to construct a single family dwelling on Locus, which is within 100 feet of a tributary of Lake Cochichewick. The North Andover Zoning By-law (By-law) in effect when Locus was created allowed construction within 100 feet of a tributary of Lake Cochichewick only upon the grant of a special permit.' A public hearing was opened on March 17, 1998. Due to concerns raised by Subsequent to the creation of Locus,the By-law was amended to prohibit any construction within-100 feet of a tributary of Lake Cochichewick. t high water mark of Lake Cochichewick and one hundred (100) feet horizontally from the edge of all tributaries, except by special permit." This special permit provision was subsequently deleted,thereby prohibiting construction within one hundred (100) feet of a tributary of Lake Cochichewick.' 4. By-law Section 4.133, entitled"Watershed District",notes that Lake Cochichewick serves as the drinking water supply for the Town of North Andover.' 5. On July 22, 1998, Plaintiff submitted a Notice of Intent to the North Andover Conservation Commission(Commission)to construct a single family home on Locus. The Commission granted an Order of Conditions on September,2, 1998.6 6. Locus is currently a wooded,unimproved lot. As shown on a"Determination of Applicability"plan,the tributary in question is a intermittent stream located toward the rear of Locus. The stream is bordered by vegetated wetlands, forcing any surface runoff to travel through the vegetated wetlands prior to entering the stream. The stream then travels for over one mile through a series of small ponds before reaching Lake Cochichewick. 7. Plaintiff proposed safeguards for improving Locus, including constructing the asphalt 4 The parties have stipulated that the By-law that is applicable is the one that was in effect when the lot was created in 1979, and there is no challenge to the validity of the By-law. 'As a statement of its purpose,By-law§4.133 (1),provides: "[t]he Watershed District surrounding Lake Cochichewick, our source of water supply, is intended to preserve and maintain the filtration and purification function of the land,the ground water table,the purity of the ground water and the lake,to conserve the natural environment and to protect the public health,safety and welfare." 6 The Notice of Intent and Order of Conditions and related plans are the subjects of the Board's motion in limine,referenced in fn.2,hereof. The Board argues that because these documents came into existence after the date of the Decision,they are not relevant in this de novo review. This court concluded that the information was relevant both to show the likely effectiveness of Plaintiff's proposed environmental protection measures,as depicted on the supporting documentation provided with the Notice of Intent, as well to as establish that Plaintiff could have provided the Board with the information it requested. The latter point was pressed by the Board. 3 upon the water supply, to the point where he argues that there will be no adverse affects resulting from the construction. The Board had numerous concerns about the runoff into the intermittent stream, and after several hearings, issued a decision denying the special permit. Although the Plaintiff's efforts to mitigate the impact of his project satisfied the Commission;which issued an Order of Conditions for the project, the Board has raised legitimate concerns that are sufficient to uphold its Decision. In order for Plaintiff to be successful in overturing the Decision,he must show that it is "based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." - MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 638-639 (1970). It is not enough for Plaintiff to simply show that a special permit could have issued under the circumstances. Zaltman v. Board of Appeals of Stoneham, 357 Mass. 482, 484 (1970). As one court stated"[t]o hold that a decision of the board denying a permit is arbitrary and capricious per se whenever the board, on the facts found by the trial judge, could have granted a permit,would eliminate the board's intended discretion." Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275, 277-278 (1969). Therefore, despite Plaintiff's diligent efforts, if the Board's reasons for denying the special permit are within its authority, as delimited by the By-law, and are supported . by the facts found by the court, the Decision must stand. The Board made four"findings of fact" in support of its denial of Plaintiff's application. The first finding states that the"specific site is not an appropriate location for the construction of a single family home and driveway as the home is located only fifty feet from the edge of the tributary. . ." (emphasis in original). The Board went on to state that Plaintiff should have sought a variance from the Board of Appeals to construct the house closer to the street and the side lot 5 has taken to ensure the project will not have a negative impact on the water supply as evidence that this finding is unreasonable, arbitrary and capricious. These steps include placing the catch basin with an oil and grease trap in the driveway, creating the vegetated swale on the border of the vegetated wetlands, and constructing dry wells for the roof drainage, which was requested by the Board. While the Board might have concluded these step were sufficient to ensure that the project has no negative impact upon the water quality of Lake Cochichewick, it continued to have reservations.'1 The Board requested additional information from Plaintiff, including test pit information, calculations concerning drainage, and maintenance information for the catch basin, dry well and vegetated swale,none of which was provided to the Board. Some of the information requested by the Board was provided at trial,just as it had been presented to the Commission prior to its issuance of the Order of Conditions. Because this is a de novo hearing, the court is not bound by the evidence that was before the Board,but must make independent findings of fact,based on the evidence at trial. See Marr v. Back Bay Architectural Comm'n, 32 Mass. App. Ct. 962, 963 (1992). Thereafter, the court determines whether the Decision was reasonable, based on the facts before the court. In this case, as in many, there is a mismatch between the evidence Plaintiff put before the Board and the evidence established at trial, with the latter evidence being more fully developed. Nonetheless, even taking into consideration the additional information Plaintiff put before the court, the Board's concerns do not appear arbitrary. At trial, the Board raised a concern that the steps taken by Plaintiff might not be effective for all storm events. Plaintiff's t i One suggestion the Board made was that Plaintiff significantly reduce the length of the proposed driveway,thereby reducing the impervious surface area on Locus. S application, "[i]f reasonable minds could differ on the seriousness of a problem in relation to the issuance of a special permit, it [is] the board's decision, and not the court's, which [is] controlling." Kinchla v. Board of Appeals of Falmouth, 11 Mass. App. Ct. 927 (198 1) (citations omitted). Because there was competent evidence at trial to support the Board's findings, and its denial of Plaintiff's application, this court finds that the Decision was reasonable and must be affirmed. Judgment to issue accordingly. Karyn Faith Scheier Justice Dated: May 9, 2002 9 (SEAL) COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT ESSEX, ss. MISCELLANEOUS CASE NO, 249120 HENRY KUCHARZYK, TRUSTE of HEFCO ) REALTY TRUST ) Plaintiff, ) V. ) RICHARD S. ROWEN, ALISON LESCARBEAU, ) JUDGMENT JOHN SIMONS, RICHARD NARDELLA and ) JOSEPH V. MAHONEY, as they constitute the ) PLANNING BOARD of the TOWN of NORTH ) ANDOVER, . ) Defendants ) In this action brought pursuant to G. L. c. 40A, § 17,Henry Kucharzyk, as Trustee of the Hefco Realty Trust(Plaintiff), appeals a decision of the Planning Board of the Town of North Andover (Board), denying his application for a special permit. Plaintiff owns a lot of land shown as Lot 20A on Bridle Path Road in North Andover(Locus). By his application, Plaintiff seeks to construct a single family dwelling on Locus, which is within 100 feet of a tributary of Lake Cochichewick. The North Andover Zoning By-law (By-law) in effect when Locus was created allowed construction within 100 feet of a tributary of Lake Cochichewick only upon the grant of a special permit.' Following public hearing, the Board issued a written decision denying Plaintiff's special permit application(Decision), and Plaintiff filed this appeal. A trial was held on October 12, 2000, and a decision affirming the Decision has issued. In accordance with that decision, it is hereby ADJUDGED and ORDERED that the decision of the Board, dated June 5, 1998,by which the Board denied Plaintiff's application for a special permit was within the Board's authority and is upheld. By the court(Scheier, J.) Attest: Charles W. Trombly, Jr., t r TM -- Dated: May 9, 2002 . RECORDER 1 Subsequent to the creation of Locus,the By-law was amended to prohibit any construction within 100 feet of a tributary of Lake Cochichewick.