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HomeMy WebLinkAboutLegal Document - 250 BRIDLE PATH 1/12/2001 f 0111011mb COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. LAND COURT MISC. CASE NO. 249120 HENRY KUCHARZYK, TRUSTEE ) OF HEFCO REALTY TRUST ) Plaintiff ) V. ) RICHARD S. ROWEN, ALISON LESCARBEAU ) JOHN SIMONS, RICHARD NARDELLA AND ) POST TRIAL JOHN V. MAHONEY, AS THEY CONSTITUTE ) MEMORANDUM THE PLANNING BOARD OF THE TOWN OF ) NORTH ANDOVER, ) Defendants ) INTRODUCTION This is an appeal from a denial from a dimensional special permit application from the Town of North Andover. The Plaintiff, Henry Kucharzyk, Trustee pursuant to the 1978 North Andover Zoning By Law (the By-law governing this lot) requested a dimensional special permit in order to construct a dwelling within 100 feet of a tributary to Lake Cochichewick. The Planning Board, voting three in favor and one opposed, denied the special permit application. The Plaintiff claims that the proposed construction will cause no adverse impact to the water that runs through the property as compared to existing conditions Therefore, the denial of the Planning Board was arbitrary, capricious and unreasonable. FACTS 1. On January 29, 1998, Henry Kucharzyk applied to the Town of North Andover Planning Board for a Special Permit pursuant to Sec. 4.133 of the North Andover Zoning By- law in effect as of 1979 (Statement of Agreed Facts); :RENTER tit MCCARRON ATTORNEYS AT LAW 0 HATHORNE OFFICE PARK 491 MAPLE STREET DANVERS.MA 01923 (978)777-7000 2. The Plaintiff applied for a Special Permit for construction of a single family residential dwelling within 100 linear feet horizontally from the edge of a tributary to Lake Cochichewick (Statement of Agreed Facts); 3. At a Special Town Meeting of the Town of North Andover held on June 26, 1978, the Town of North Andover voted to adopt Article IV of the Warrant which created the Watershed District in the Town. Section III 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. (Statement of Agreed Facts) 4. The Town of North Andover subsequently amended Section 4.133 in 1985 to prohibit any construction from occurring one hundred feet horizontally from the edge of all tributaries by deleting the words "except by special permit' and added language stating the intent was dimensional (Statement of Agreed Facts). 5. The original subdivision containing the property of the Plaintiff was shown on a ;RENIER&MCCARRON ATTORNEYS AT LAW definitive subdivision plan entitled "Great Pond Woodland" dated August 23, 1976, which was 0 HATHORNE OFFICE PARK 491 MAPLE STREET DANVERS,MA 01923 Kucharzyk.0111.0111011mb 2 19781 777-7000 approved and endorsed by the Planning Board in December of 1976. Lots 20 and 21 were part of the subdivision plan (Statement of Agreed Facts). 6. By deed recorded July 27, 1978, Landsail, Inc. deeded Lot 21 to Landsail Construction Corporation. The definitive plan was subsequently modified by a plan which was endorsed by the Planning Board on April 3, 1979. The revised plan shows Lots 20A, which includes a large portion of the former Lot 20 and a portion of the former Lot 21. The property in question is shown as Lot 20A on a plan entitled "Revised Plan of Land located in North Andover, Massachusetts prepared for Landsail, Inc., Scale 1" = 40' dated April 2, 1979." This plan was recorded with the Essex North District Registry of Deeds as Plan Number 8088 and filed with deed recorded on May 7, 1979 in Book 1369, Page 506. Lot 20A was conveyed by deed dated April 25, 1979 back to Landsail, Inc. by Landsail Construction Corporation. On the same day Landsail, Inc. conveyed the remaining portion of Lot 20 to Landsail Construction Corporation. By deed recorded on January 18, 1982, Landsail, Inc. conveyed Lot 20A to Paul G. Cote and and Henry Kucharzyk, Trustees of HEFCO Realty Trust (Statement of Agreed Facts). 7. On March 17, 1998, the Planning Board of the Town of North Andover held a public hearing on an application of Kucharzyk for a Special Permit relating to the construction of a single family residential structure within one hundred feet from the tributary to Lake Cochichewick (Statement of Agreed Facts); 8. Said public hearings were continued until April 21, 1998 and further to May 19, 1998 and June 2, 1998 the public hearing was closed on June 2, 1998 (Statement of Agreed Facts); 9. On June 5, 1998 the Planning Board with a vote of 3 in favor and 1 opposed voted to deny the request for Special Permit for construction of a single family residential ;RENIER&MCCARRON ATTORNEYS AT LAW structure within 100 feet tributary to Lake Cochichewick (Statement of Agreed Facts); 0 HATHORNE OFFICE PARK 491 MAPLE STREET DANVERS.MA 01923 3 (978)777.7000 Kucharzyk.0111.0111011mb 10. On or about July 22, 1998, Henry Kucharzyk submitted a Notice of Intent to the North Andover Conservation Commission for construction on the property. (Exhibit 11) 11. On or about September 2, 1998, the Conservation Commission of North Andover granted an Order of Conditions for construction of a single family house and related structures on the property. (Exhibit 12) 12. The property is located in an area of single family homes. (Transcript, page 32) 13. Property is presently vacant and in a wooded condition. (Transcript, page 32) 14. The wetland areas on the property are shown on a Determination of Applicability plan and consists of bordering vegetated wetlands with an intermittent stream located in the extreme rear of the property. (Exhibit 7) 15. Drainage from the property flows towards bordering vegetated wetlands to the intermittent stream in the rear of the property. (Transcript, page 35) 16. From the property, drainage travels through the bordering vegetated wetlands toward the intermittent stream to a farm area through a stream then through a series of farm ponds under an old underdeveloped way through a series of other ponds before finally discharging into Lake Cochichewick. (Chart A and Transcript, pages 30-31) 17. The Plaintiff proposed to construct a single family residential structure in conformance with the setback requirements of the North Andover Zoning By Laws. (Exhibits 8, 9A, 9B, 13A, 1313). 18. The Plaintiff proposes no alteration of any bordering vegetated wetland. (Exhibits 8, 9A, 9B, 13A, 13B) 19. The Plaintiff proposes a 25 foot no cut area buffer zone extending from the bordering vegetated wetlands. This no cut area is proposed to be kept natural condition in REN[ER&WCARRON ATTORNEYS AT LAW perpetuity. (Exhibits 9A-9B, 13A-1.3B) HATHORNE OFFICE PARK 491 MAPLE STREET DANVERS.MA 01923 Kucharzyk.0111.011101 Imb 4 (978)777-7000 20. The Plaintiff proposes to have a 50 foot no construction zone extending from the bordering vegetated wetlands and in compliance with the 50 foot no construction requirements of the North Andover Conservation Commission. (Exhibits 9A-913, 13A-13B) 21. The property is to be serviced by town sewer and they are no septic systems proposed on the site. (Transcript, page 55) 22. Roof drainage is to be handled by a series of dry wells infiltrating directly into the ground. (Exhibits 9A-9B, 13A-B) 23. The driveway is proposed to be constructed in the area furthest away from the bordering vegetated wetlands as is possible. (Exhibits 9A-913, 13A-138) 24. The driveway is to be serviced by a catch basin complete with oil and gas trap and a water quality swale. (Exhibits 9A-9B,13A-13B) 25. Although it is not required for a project of this size, the driveway with the catch basis and water quality swale complies with the Stormwater Management criteria promulgated by the Department of Environmental Protection. (Transcript, page 59) 26. The project will cause no derogation in the water quantity or quality that runs off the property compared to existing conditions. (Transcript,. Page 68). ISSUES PRESENTED i. Whether the proposal to construct a single family dwelling within one hundred feet from a tributary to Lake Cochichewick complies with the necessary standards for the protection of the ground water. RENTER&MCCARRON ATTORNEYS AT LAW 7 HATHORNE OFFICE PARK 491 MAPLE STREET DANVERS.MA 01923 5 (978 7777000 Kucharzyk.0111.0111011mb ii. Whether the Planning Board of the Town of North Andover acted unreasonably, arbitrarily or capaciously in denying the application for a special permit for the Plaintiff. SHORT ANSWERS i. Special permits should be granted on the basis of discernible standards contained within the zoning bylaw. In the present case, the purpose of the Watershed District is to protect and preserve the water at Lake Cochichewick. The Proiect as designed will cause no derogation of the water quality and therefore meets the standards for the issuance of the special permit. ii. The action of the Planning Board in denying the special permit application was unreasonable, arbitrary and capricious since the Applicant has employed the best management practices in protecting the groundwater as is shown by the issuance of the Order of Conditions from the North Andover Conservation Commission. ARGUMENT In order to be valid, special permit requirements within zoning bylaws must contain some standards by which a reasonable applicant can anticipate what requirements and conditions would be appropriate for the grant of a special permit in his circumstance. In the case of MacGibbon v. Board of Appeals of Duxbury, 356 Mass 635, 637-38, 255 N.E.2d 3471 350 (1970), the Supreme Judicial Court ruled: :RENIER MCCARRON ATTORNEYS AT LAW The delegation of authority to the board of appeals to act on 0 HATHORNE OFFICE PARK application of special permits for exception to the zoning by-law 491 MAPLE STREET DANVERS.MA 01923 Kucharzyk.01 11.011 1011mb 6 (978)777-7000 cannot leave the decision subject to the "untrammeled discretion' or"unbridled fiat" of the board. (Citations omitted.) The Zoning Enabling Act and the by-law together must provide adequate standards for the guidance of the board in deciding whether to grant or to withhold special permit for the excavation or filing of wetlands. The standards need not be of such a detailed nature that they eliminate entirely the element of discretion from the board's decision. It would be difficult, in not impossible to foresee and specify, by ordinance or bylaw every circumstance or combination circumstances under which special permits should be granted or withhold. "the degree of certainty with which standards for the exercise of discretion are set up must necessarily depend on the subject matter and the circumstances." See Burnham v. Board of Appeals of Gloucester, 333 Mass. 114, 118, 128 N.E.2d 772, 775 (1955) In the present situation, the requested special permit is for permission to construct a single family structure within one hundred feet of a Tributary to Lake Cochichewick. In Section 4.133 (1) of the 1979 Zoning Bylaw, the Town outlines the purpose of the Act: The 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 groundwater and the lake, to conserve the natural environment and to protect the public health, safety and welfare. (Exhibit 1) In dealing with the standards that should apply to granting a special permit pursuant to this section of the zoning bylaw, it would seem that the major concern should be the impact of the proposed construction on the quantity and quality of the drainage water exiting the site and the preservation of the qualities of the land which assist in the natural filtration process of the land. In many ways this concern mirrors the concerns of the Wetlands Protection Act M.G.L. c. 131 sec. 40. The Wetlands Protection Act cites an number of interests the Act is to protect. Among these are protection of public and private water supply and protection of ground water RENTER 6c MCCARRON supply. See, 310 CMR 10.01(2). Over the years, the Wetlands Protection Act and the ATTORNEYS AT LAW HATHORNE OFFICE PARK 491 MAPLE STREET DANVERS.MA 01923 7 (978)777-7000 Kucharzyk.0111.0111011mb Regulations promulgated thereto have established a number of standards governing construction and use of property with the intention to protect and preserve drinking and ground water. It is therefore, reasonable to assume that compliance with the performance standards set forth in the Wetlands Protection Act and their Regulations provide a reasonable objective measure to gauge the impact of a proposed project on an area such as the Watershed District of North Andover. In the present case, the applicant has employed standards which will fulfill the requirements of the purposes of the Watershed District. He has obtained an Order of Conditions issued by the North Andover Conservation Commission for the proposed construction (See , Exhibit 12) . Additionally, he has obtained approval pursuant to the more rigorous standards of the North Andover Non Zoning Wetlands Bylaw Chapter 178. (See Exhibit 12). His proposal contemplates no alternation of any bordering vegetated wetland area. This has an important impact on the Watershed District since one of the major reasons why there are limitations on alterations to bordering vegetated wetland areas center on the filtration and pollution attenuating qualities of these areas. This filtration quality is so important that the Performance Standards promulgated in the Wetlands Regulations, 310 CMR 10.01 et seq. provide a limitation to the amount of area that can be altered. "While retention and detention basins and compensatory storage measures can replicate the flood control value of bordering vegetated wetlands, there are no engineering solutions currently available that can replace the capacity of such wetlands to renovate water quality or to provide food, cover and habitat for fisheries." (Preface to the Wetlands Regulations, 1983 Regulatory Revisions, 310 CMR p457,464-465). The project as designed and presented by the Plaintiff therefore preserves to the greatest extent possible the natural wetlands features of this land. In addition to the preservation of all the wetland areas on the site, the applicant also RENIER&MCCARRON ATTORNEYS AT LAW proposes a number of features which protect and preserve the ground water exiting the site. 0 HATHORNE OFFICE PARK 491 MAPLE STREET DANVERS.MA 01923 - 8 1978i777.7000 Kucharzyk.01 11.011 1011mb These features include the creation of 25 foot no cut area. The Conservation Commission has inserted an additional requirement that this 25 foot area be demarked by a landscaped wall so that future homeowners will realize that the area beyond the wall must be kept in a natural, uncut state. The applicant also proposed that no construction take place within 50 feet of bordering vegetated wetlands. The applicant proposes that roof drainage be directed to dry wells so that the rain water from the roof may be directed directly into the ground replicating the natural condition of rain water falling into the ground. Lastly the small amount of driveway, approximately 1800 square feet of pavement, will be serviced by a drainage system compliant with the Stormwater Management Criteria.of the Development of Environmental Protection. These criteria include the installation of a catch basin with an oil and grease trap and the creation water quality swale which will act to detain the water from the driveway so that any small amount of pollutants such as salt which may be in drainage water will settle into the vegetated Swale. Additionally, the property will be serviced by town sewerage. These are objective engineering criteria, which demonstrate that the project as proposed will not adversely impact the quality or quantity of water that flows to Lake Cochichewick. It should be noted that the town presented no evidence to dispute the testimony of Phillip Christiansen and Mr. Christiansen opined that this development will have no impact on the water quality from the lot heading into the Lake. (Transcript, Page 68) The Planning Board attempted to illicit testimony from Mr. Christiansen that there was a "possibility" that something that spilled on the driveway, may eventually make its way into the Lake (Transcript 92-95). Mr. Christiansen also testified that there was a possibility that dumping may take place on a vacant lot and that could also impact the Lake. (Transcript Page 126) It is unfair to hold an applicant to a standard which would be dictated by every RENIER&MCCARRON ATTORNEYS AT LAW "possibility" that could occur. Indeed the realm of possibility is so great as to include meteors 0 HATHORNE OFFICE PARK 491 MAPLE STREET DANVERS.MA 01923 9 (9781 777-7000 Kucharzyk.01 11.011 1011mb falling, earthquakes and any other type of natural phenomenon. The grant or the denial of a special permit should exist within the realm of reasonably objective standards and in the present situation the engineering practices demonstrated on the Plans indicate that the Plaintiff has complied with those standards. ii. When a special permit granting authority acts unreasonably, arbitrarily, or capriciously in the denial of a special permit, that denial should be overturned by the Court on appeal. For example, in the case of Prudential Insurance Company v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278, 502N.E.2d 137 (1986), a site plan approval was improperly denied when adequate provisions were made for the traffic to be generated on the site. In effect, the applicant had met the standards for the impact of this development on the area. Also, in the case of Mahoney v. Board of Appeals of Winchester, 344 Mass. App. Ct. 598, 183 N.E.2d 850 (1962), the denial of a special permit for an expansion of a nursery was improper when there was no evidence presented by the Board of Appeals that the addition would have any impact on the currently existing business. These cases stand for the proposition that the reasons for denial should be based upon some sort of objective criteria which can be adequately discerned. In the present circumstances, the Planning Board has cited only a few reasons why the special permit should be denied. It first cited that the specific site was not an appropriate location because the applicant did not seek to obtain a variance. It is an unreasonable burden to place upon an applicant the grant of exceptional zoning relief to order to met the standard for another section of the Zoning Bylaw. It seems reasonable in the situation where a special permit would avoid the need for a variance, that a landowner should attempt to acquire that special permit prior to requesting the more drastic zoning relief. A review of the plans in this case (Exihibits 9A and 9B) indicate that it would be impossible to construct a dwelling without some portion of it being RENIER&MCCARRON ATTORNEYS AT LAW within a 100 feet of the tributary. The second reason cited by the Board was that the i HATHORNE OFFICE PARK 491 MAPLE STREET DANVERS,MA 01923 Kucharzyk.0111.011101 Imb 10 (978)777-7000 construction proposed did not have a sufficient barrier to preserve and protect the tributary from the erosion of soil. This is simply wrong. No evidence was presented as to that effect. In fact, the Order of Conditions presented by the applicant showed that adequate safety measures would be installed to protect and preserve the wetland areas not only during the construction phase but as a permanent feature. The Order of Condition is prima facie evidence that the bordering vegetated wetland areas would not be altered by this construction as suggested by the second reason for denial. Therefore, that reason is unreasonable, arbitrary and capricious and not based on the actual factual circumstances. The third reason cited by the Planning Board was that adequate and appropriate facilities had not been provided for the proper operation. The area cited in simple detail that information was not provided demonstrating the operation would properly protect the Watershed. Again, it was presented to the board that the development would comply with the Stormwater Management Criteria and there was no evidence presented by the board as to any negative impact of the proposed use. Lastly, the board cites that it is not in harmony with the general purpose of the Watershed District since not all feasible steps were taken to protest (sic) the Watershed ((Exhibit 3). There has been no evidence presented as to any additional steps that the applicant did not take to protect and preserve the wetland area. Overall, the reasons for decision can cite no objective criteria which the applicant has failed to meet but only speak in generalities citing adverse consequences which are believed to occur. The Planning Board has argued that certain additional information was supplied to the Conservation Commission which was not supplied to the Planning Board. The testimony of Phillip Christiansen indicates that the two plans have only slight modifications between them. (Transcript Pages 113-119) The Court in this circumstance must review this evidence de novo. if the Court finds that the evidence presented at trial indicates that there was no RENIER 6c MCCARRON ATTORNEYS AT LAW reasonable circumstance to deny the special permit then the proper remedy for the Court is to 0 HATHORNE OFFICE PARK ' 491 MAPLE STREET DANVERS,MA 01923 11 Kucharzyk.0111.0111011mb (9781 777-7000 remand the case back to the Planning Board for a decision in compliance with the Court's findings. The Court certainly has the power to require that any additional information or criteria which was part of the Conservation Commission process be incorporated with any decision. There is simply no objective reason presented by the Defendant that would support the conclusion that the proposed construction would have any adverse impact on the quantity or quality of the water draining off this site. Without some evidential support for a denial, the case illustrates the "untrammeled discretion" feared by the MacGibbon Court. CONCLUSION The Defendants project meets the standards for the protection and preservation of the Watershed District and this Court should order the matter to be remanded to the North Andover Planning Board for issuance of the special permit in compliance with the plans as submitted to the North Andover Conservation Commission. Henry Kucharzyk, Trustee By his attorney, Michael P. McCarron, Esq. BBO#327570 Grenier& McCarron 100 Hathorne Office Park 491 Maple Street Danvers, Massachusetts 01923 Dated: (978)777-7000 RENIER&MCCARRON ATTORNEYS AT LAW HATHORNE OFFICE PARK 491 MAPLE STREET DANVERS.MA 01923 12 (978)777.7000 Kucharzyk.01 11.011 1011mb