HomeMy WebLinkAboutAPPEAL n
COMMONWEALTH OF MASSACHUSETTS
E EX, ss. LAND COURT
C 3 ��� J No.
B-EfiT AZIN C. OSGOOD and )
HARRIET G. OSGOOD, TRUSTEES )
OF ABBOTT STREET TRUST, )
Plaintiffs )
COMPLAINT
V. )
TOWN OF NORTH ANDOVER )
PLANNING BOARD, )
Defendant )
INTRODUCTION
1 . This is an appeal, pursuant to G. L. c. 41 ,
§81BB, of a decision of the Town of North Andover
Planning Board (the "Board" ) dated June 13, 1988 and
filed with the Town Clerk on June 13, 1988 relative to a
modification of a subdivision shown on a plan entitled
"Definitive Subdivision Modification 'Abbott Village
Estates ' Located In North Andover, Massachusetts" , dated
October 23, 1987, and prepared by Thomas E . Neve
Associates, Inc. (the "Plan" ) .
PARTIES
2 . The plaintiffs, Benjamin C . Osgood and Harriet
G. Osgood, Trustee of Abbott Street Trust, are the
owners of the property which is shown on the Plan and
have a usual place of business in North Andover,
Massachusetts.
3. The defendant is the Town of North Andover
Planning Board with offices at Town Hall , North Andover,
Massachusetts.
FACTS
4 . The plaintiff is the owner of a parcel of land
consisting of approximately 49 acres located beyond the
limit of the constructed ways of Abbott Street and Salem
Street in North Andover, Massachusetts ( the "Property" ) .
5 . Plaintiff submitted to the Board an
application for approval of a definitive subdivision
plan for the Property on The application
was approved with conditions on The
conditions included a requirement tha t one of the
subdivision roadways, Thistle Road, be connected to an
existing dead-end street in the abutting subdivision,
using an easement shown on the approved subdivision plan
of the abutting subdivision.
6 . The Board's December 2 , 1985 approval was
appealed to Superior Court pursuant to G. L. c . 41 , §81BB
by abutters to the Property in two separate actions . In
one of the actions, Essex Superior Court civil action
the Superior Court ruled that there was no
valid easement available to connect Thistle Road with
the dead-end street in the abutting subdivision. The
validity of this determination by the Superior Court is
the subject of a pending appeal in the Appeals Court .
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7. In order to address the problem presented by
the appeal of the December 2 , 1985 approval , on °° "`
plaintiff submitted to the Board an
application for approval of a modification of the
definitive subdivision plan for the Property along with
the 10000 OW The new Plan eliminated the
connection to an existing street over the contested
easement and added a cul-de-sac at the end of Thistle
Road.
8 . The failure of the Board to file a certificate
of final action with respect to the application and Plan
submitted on October 30, 1987 within the reduired time
resulted in constructive approval of the application and
Plan pursuant to G. L.c . 41, 9810. The Plan has been so
endorsed by the Town Clerk and the Plan has been
recorded in the Essex County Registry of Deeds .
4 W Following the constructive approval and
recording of the Plan, the plaintiffs granted two
mortgages to the Vanguard Savings Bank covering all the
lots in the subdivision, with the exception of lots
already on an existing public way, in good faith and for
valuable consideration to secure loans for construction
V'
of the subdivision improvements as shown on the Plan.
The mortgages were recorded in the Essex County North
Registry of Deeds on April 8 , 1988 as instrument nos .
7555 and 7556.
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4
10. Notwithstanding the constructive approval of
the Plan and the mortgaging of the lots shown thereon,
on « the Planning Board advertised notice
of a public hearing the purpose of which was to modify
the approved Plan by the imposition of conditions .
11 . On �� the Planning Board held a
hearing pursuant to G. L.c . 41, §81W, and on
&solo/
voted to modify the approved Plan by imposing certain
conditions . The Planning Board signed and filed with
the Town Clerk a written decision on A
copy of the decision, certified by the Town Clerk , is
attached hereto as Exhibit A.
12 . The decision of the Board was arbitrary and
1
capricious and exceeded the Board 's authority in that
the Board has no authority to impose any conditions on a
definitive subdivision plan or modification thereof
which has been constructively approved pursuant to
G.L. c . 41 , §$1U.
13. The Board further exceeded its authority in
imposing several of the conditions notwithstanding the
constructive approval, including , without limitation,
the conditions in the paragraphs numbered 2 .a-e, 3 ,
5.a-d, 7 , 8 and 9 , and the following numbered paragraphs
for conditions to be placed on the Plan: 1 , 8 , 9 , 10 ,
11, 12, 16, 18 , 19 and 20.
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14 . The conditions imposed by the Board are
invalid as they either pertain to matters which are not
add,ressed in th� Board 's Rules and Regulations or are
specifically authorized in the Board 's Rules and
Regulations.
15. The conditions imposed by the Board are
invalid as they pertain to matters beyondhr
Bcard ',s.
jurisdiction under the Subdivision Control Law .
16. The Board further exceeded its authority by
purporting to affect lots by its m9,oi f i c a t i without thou t
obtaining the consent of the mortgagee of the affected
lots.
17 . The Plaintiff is aggrieved by the decision of
the Board.
WHEREFORE, the Plaintiff requests :
1 . That the Court hear the evidence and annul the
Board 's decision dated June 13, 1988 modifying the Plan,
and
2 . Such other relief as the Court deems just.
BENJAMIN C. OSGOOD and
HARRIET G. OSGOOD, TRUSTEES
OF ABBOTT STREET TRUST
By their attorneys,
Ile
J-5-11an- j ostiK
-.",D'W e
6i
Howard P. S6e, icher
, Davis, Malm & D'Agostine
One Boston Place
Boston, MA 02108
Dated: June 29 , 1988 ( 617) 367-2500
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