HomeMy WebLinkAboutApplication - 250 BRIDLE PATH 1/27/1998 RE C,f(�. r pr,
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APPLICATION OF HENRY KUCHARZYK
TRUSTEE OF HEFCO REALTY TRUST
FOR SPECIAL PERMIT FOR CONSTRUCTION
IN THE WATERSHED DISTRICT
INTRODUCTION
This is an application for a Special Permit issued by the Planning Board of the
Town of North Andover in accordance with the zoning by-law in effect as of August 1, 1979 for
the construction of a single-family dwelling on property located within 100 feet horizontally of
the edge of a tributary to Lake Cochichewick. As discussed below, this Special Permit is
permitted to this particular lot since it has the benefit of Massachusetts General Laws
Chapter 40A, Section 6, and constitutes a"grandfathered" lot. In reviewing this application, it
is necessary to review the title to the Premises and the zoning history of North Andover.
PROPERTY OF HEFCO REALTY TRUST
The property in question is shown as Lot 20A on a plan entitled "Revised Plan
of Land Located in North Andover, MA; Prepared for Landsail, Inc.; Scale: 1" =40'; Dated:
April 2, 1979." (Hereinafter referred to as the"Property") This plan is recorded with the Essex
North District Registry of Deeds as Plan No. 8088 and filed with deed recorded on May 7,
1979 in Book 1369, Pages 506, 508 and 513. Said plan is attached hereto as Exhibit A.
(Hereinafter referred to as the"Revised Subdivision Plan") The Property constituted a
resubdivision of other property as shown on a previously approved definitive plan endorsed by
the North Andover Planning Board. This plan was entitled "Definitive Plan of Land of Great
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'lPond Woodland Located iD North Andover, Massachusetts; Owner ondApoicant Landsail,
Inc., 382 Commonwealth Avenue,Apartment 64. Boston, Massachusetts." This plan was
recorded aS Plan No. 7548in the Essex North District Registry of Deeds. Copies of the
appropriate sheets are attached hereto as Exhibit B. (Hereinafter referred togG "Definitive
P|GD"\ By deed dated July 26, 1978 and recorded on July 27, 1978 with the Essex North
District Registry OfDeeds in Book 1345, Page 772, L8Dds8i|. Inc. deeded Lot 21 as shown OO
the Definitive Plan toLandsai| Construction Corporation. A copy of said deed iSattached
hereto as Exhibit C. By deed dated April 25. 1979. LaOdSai( Construction Corporation
reconveyed to Landsail, Inc. a portion of the former Lot 21 as shown on the Definitive Plan,
which constitutes the portion marked"Area 3,830 sq. ft." on Lot 20A as shown on the Revised
Subdivision Plan. /\copy of this deed io attached hereto 8G Exhibit O.
B«deed dated April 25. 1970. Lgndeai|. Inc. conveyed t0 LaDdoai| ConetnJotion
Corporation that portion of the former Lot 20 as shown on Definitive Plan that portion of Lot
21AAaS ahoVvO on the Revised Subdivision P|mO' being equal to the area 9.301 8q. ft. Ac0py
of this deed ie attached hereto aSExhibit E.
By deed dated July 3O' 1979 and recorded on August 1, 1979. La0dsoi|. Inc.
deeded Lot 19oe shown oOthe Definitive Plan tO Vincent C. Fantasia, Trustee ofMelrose
Investment Trust. A copy of that deed is attached hereto @a Exhibit F. A8oresult of these
transfers, as of August 1, 1979, the property shown on the Revised Subdivision Plan as
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Lot 2OA was a single-family residential house lot not iD common ownership with any ofthe
abutting properties, and this is the date, for purposes of Massachusetts General Laws,
Chapter 4OA. Section 8. to which the"8[aDdfathehDQ" rights accrue. By deed dated
January 8, 1982 and recorded OnJanuary 1B' 1902. LaDdGoi). Inc. transferred Lot 20A, as
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.shown on the Revised Subdivision Plan, to Paul G. Cote and Henry Kucharzyk, Trustees of
Hefco Realty Trust. Said deed was recorded with the Essex North District Registry of Deeds
in Book 1557, Page 86, and a copy of said deed is attached hereto as Exhibit G.
ZONING HISTORY
At a special Town Meeting of the Town of North Andover held on June 26,
1978, the Town voted to adopt Article 4 of the Warrant, which constituted the Watershed
District in the Town. Section 3 of said Article 4.133 contained the following language:
Dimensions and No Build Requirements:
a. Boundaries of Watershed District are designated specifically on the
certified North Andover watershed map 1978 and are shown on the
zoning map. These maps are hereby made part of this by-law and are
on file in the office of the Town Clerk;
b. When watershed district boundary divides a lot of record on June 26,
1978 in one ownership, all the zoning regulations set forth in the zoning
by-law applying to the greater part by area of such lot so divided may by
special permit be deemed to apply and governed at and beyond such
watershed district boundary but only to the extent not more than one
hundred (100) lineal feet in depth (at a right angle to such boundary) into
the lesser part by area of such lot so divided;
c. A no cut buffer zone shall exist one hundred fifty (150)feet horizontally
from the annual mean high water mark of Lake Cochichewick and
twenty-five (25)feet horizontally from the edge of all tributaries in the
watershed;
d. No construction shall occur two hundred fifty(25)feet horizontally from
the annual mean high water mark of Lake Cochichewick and one
hundred (100)feet horizontally from the edge of all tributaries, except by
special permit.
A copy of the notice of the Special Town Meeting of June 26, 1978 is attached
hereto as Exhibit H.
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Since this was the by-law that was in effect as of August 1, 1979, this is the by-
law which governs the construction on the Property which is shown to be included within the
Watershed District in accordance with the North Andover Watershed Map of 1978.
It is clear from the history that this 100-ft. boundary line from a tributary
constitutes a dimensional requirement. In fact, in a later version of the by-law placed into
effect in 1985, the following language was added to the no build requirement for no
construction occurring within 100 feet horizontally from the edge of a tributary. "The intent
herein is dimensional and the North Andover Board of Appeals shall grant variances upon a
showing of substantial hardship owing to soil, shape or topography of the land, including the
right to cross such tributary." A copy of a portion of the by-law in effect in 1985 is attached
hereto as Exhibit I. Therefore, the applicant applies to this Board for a Special Permit in
accordance with the provisions of 4.133 of the North Andover Zoning By-law in effect as of
August 1, 1979 to construct within 100 feet of a tributary.
A tributary was defined by the Zoning By-law in Section 2.67 which was
adopted simultaneously with the adoption of the Watershed District as being"Any portion of
any brook, stream or pond which flows into Lake Cochichewick." While reserving all rights, the
applicant has had determined by the North Andover Conservation Commission the line of
property subject to the jurisdiction of the Wetlands Protection Act. (the Wetlands Line) We
have assumed for the purposes of this application that that which constitutes the Wetlands
Line and that which constitutes the extent of the line of the tributary are coexistent. However,
it must be pointed out that the methodology used to determine areas subject to the Wetlands
Protection Act and to the North Andover non-zoning wetlands by-law are substantially different
from the definitions set forth within the Watershed District zoning amendment of 1978.
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APPLICATION OF MASSACHUSETTS GENERAL LAWS
CHAPTER 40A, SECTION 6
Massachusetts General Laws Chapter 40A, Section 6, provides that a lot to be
used for single or two-family purposes is not subject to increases in dimensional requirements.
Specifically, said section states: "Any increase in area, frontage, width, yard, or depth
requirements of a zoning ordinance or by-law shall not apply to a lot for single or two-family
residential use, which at the time of recording or endorsement, whichever occurs sooner, was
not held in common ownership with any adjoining land conforms to the then existing
requirements and had less than the proposed requirements but at least 5,000 sq. ft. of area
and 50 ft. of frontage." In all circumstances the underlying use to which the property is
intended to be dedicated is one permitted by the zoning by-law, that being single-family
residential. The only,question is the impact of the additional dimensional requirement enacted
subsequent to the separation of this property into a single ownership. As indicated in Exhibit 1,
the setback from the tributary to Lake Cochichewick constitutes a dimensional requirement
similar to a setback from a sideline. Therefore, this constitutes a yard requirement which is
governed by the protection of this statute. It is therefore our contention that this Board has the
power to grant, pursuant to the 1978 zoning law in effect as of August 1, 1979, a Special
Permit for the construction of a single-family residential structure in accordance with the plan
entitled "Plan of Land Located in North Andover, MA; Prepared for Henry Kucharzyk; Scale:
1 40'; Dated: April 18, 1987, Rev. 5121/97 and 6/23/97; Christiansen &Sergi, 160 Summer
Street, Haverhill, Massachusetts 01830." A copy of this plan is attached hereto as Exhibit J.
This plan indicates the location of the wetlands line and a 25-ft. no cut line as required by the
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North Andover non-zoning wetlands by-law and a 50-ft. no construction line as required by the
North Andover construction non-zoning wetlands by-law.
PROPOSED RELIEF
Based upon the above, the applicant requests that this Board issue a special
permit in accordance with the provisions of Section 4.133 of the North Andover Zoning By-law.
First the Board should find that this property was in separate ownership as of August 1, 1979.
Then, in accordance with the provisions of the Zoning By-law in effect as of August 1, 1979,
this Board is the special permit granting authority with regard to issues involving the
Watershed District. Although we are not governed by the new wetlands by-law, we are
attaching hereto as Exhibit K a copy of the Town of North Andover Planning Board application
for special permit for the information contained therein. Also attached hereto as Exhibit L, is a
proposed public notice which meets the terms and requirements of this action.
CONCLUSION
Based upon the above, the applicant respectfully submits that this Board has
the power to grant and should grant the requested relief, namely a special permit for the
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construction within 100 feet horizontally from a tributary of Lake Cochichewick in-accordance
with the provisions of Section 4.133 of the North Andover Zoning By-law in effect as of
August 1, 1979.
HENRY KUCHARZYK, TRUSTEE
HEFCO REALTY TRUST
By his attorneys,
/t4,-C ,/1
Michael P. McCarron
GRENIER&McCARRON
100 Hathorne Office Park
491 Maple Street
Danvers, Massachusetts 01923
(508) 777-7000
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