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HomeMy WebLinkAboutApplication - 250 BRIDLE PATH 1/29/1998 (3) Tf) ti @ NORTH hk,l i JAN ed 012698eaf APPLICAT/ON OF HENRY KUCHARZYK TRUSTEE OF HEFCO REALTY TRUST FOR SPEC/AL 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 KUCHARZYK.814 012698eaf Pond Woodland Located in North Andover, Massachusetts; Owner and Applicant: Landsail, Inc., 382 Commonwealth Avenue, Apartment 64, Boston, Massachusetts." This plan was recorded as Plan No. 7548 in the Essex North District Registry of Deeds. Copies of the appropriate sheets are attached hereto as Exhibit B. (Hereinafter referred to as"Definitive Plan") By deed dated July 26, 1978 and recorded on July 27, 1978 with the Essex North District Registry of Deeds in Book 1345, Page 772, Landsail, Inc. deeded Lot 21 as shown on the Definitive Plan to Landsail Construction Corporation. A copy of said deed is attached hereto as Exhibit C. By deed dated April 25, 1979, Landsail 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. A copy of this deed is attached hereto as Exhibit D. By deed dated April 25, 1979, Landsail, Inc. conveyed to Landsail Construction Corporation that portion of the former Lot 20 as shown on Definitive Plan that portion of Lot 21AA as shown on the Revised Subdivision Plan, being equal to the area 9,301 sq. ft. A copy of this deed is attached hereto as Exhibit E. By deed dated July 30, 1979 and recorded on August 1, 1979, Landsail, Inc. deeded Lot 19 as shown on the Definitive Plan to Vincent C. Fantasia, Trustee of Melrose Investment Trust. A copy of that deed is attached hereto as Exhibit F. As a result of these transfers, as of August 1, 1979, the property shown on the Revised Subdivision Plan as Lot 20A was a single-family residential house lot not in common ownership with any of the abutting properties, and this is the date, for purposes of Massachusetts General Laws, Chapter 40A, Section 6, to which the"grandfathering" rights accrue. By deed dated January 8, 1982 and recorded on January 18, 1982, Landsail, Inc. transferred Lot 20A, as -2 - KUCHARZYK.814 012698eaf 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. -3- KUCHARZYK.814 012698eaf 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. -4- KUCHARZYK.814 012698eaf 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 I, 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 Kucharcyk; Scale: 1" =40; Dated: April 18, 1987, Rev. 5/21/97 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 -5 - KUCHARZYK.814 012698eaf 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 -6- KUCHARZYK.814 012698eaf 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, Michael P. McCarron GRENIER& McCARRON 100 Hathorne Office Park 491 Maple Street Danvers, Massachusetts 01923 (508) 777-7000 j fa-711 -7- KUCHARZYK.814 012698eaf Town of North Andover 3=ory N°oT Q,tioL OFFICE OF COMMUNITY DEVELOPMENT AND SERVICES p 30 School Street - North Andover,Massachusetts 01845 M�SSgc`NUS�`��y WILLIAM J. SCOTT Director February 2, 1998 Joel Bard, Esq. Kopelman&Pige 31 St. James Avenue Boston,MA 02116 Re: Lot 20A Bridle Path Dear Attorney Bard, The Planning Board is in receipt of an application for a special permit in the Watershed Protection District submitted under the bylaw in effect in 1979. The applicant has submitted a memorandum in support of this position and has attached numerous maps and deeds. Please review the application and memorandum and advise the Board as to whether or not this application is grandfathered under the 1979 re the Planning Board mustchold the first public submitted time stamped on January 29, 1998 the g by March 24, 1998 in order to meet the 65 day time limit. Please respond by February 27, 1998 so that the Board may act appropriately. If you have any questions or need additional information please do not hesitate to call me at 688- 9535. Very truly yours, Kathleen Bradley Colwell A Town Planner CC. R. Rowen, Chairman, Planning Board W. Scott, Director, CD&S R. Halpin, Town Manager BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 LEONARD KOPELMAN KOPELMAN AND PAIGE, P. C. KATHLEEN M.O'DONNELL DAVID J. DONESKI DONALD G. PAIGE SANDRA CHARTON ELIZABETH A. LANE ATTORNEYS AT LAW ILANA M. QUIRK JOYCE FRANK JOHN RICHARD HUCKSAM, JR. JOHN W. GIORGIO 31 ST. JAMES AVENUE SUSAN M. CALLAHAN BARBARA J. SAINT ANDRE BRIAN W. RILEY JOEL B. BARD BOSTON, MASSACHUSETTS 02116-4102 JOHN J. KENNEY,JR. EVERETT J. MARDER ROBERT PATTEN PATRICK J. COSTELLO BOSTON OFFICE MARY L. GIORGIO JOSEPH L. TEHAN,JR. ANNE-MARIE M. HYLAND (617)556.0007 KATHLEEN E. CONNOLLY THERESA M. DOWDY FAX(617) 654-1735 MICHELE E. RANDAZZO PETER J. FEUERBACH NORTHAMPTON OFFICE MARY JO HARRIS WILLIAM HEWIG III THOMAS W. MCENANEY DEBORAH A. ELIASON (413)585-8632 JONATHAN M. SILVERSTEIN JEANNE S. McKNIGHT WORCESTER OFFICE TIMOTHY J. ERVIN JUDITH C. CUTLER KATHARINE 1. GOREE RICHARD BOWEN (508)752-0203 CHRISTOPHER J. POLLART March 17, 1998 BY FACSIMILE - (978) 688-9573 Ms. Kathleen Bradley Colwell Town Planner Town of North Andover �''W18 Office of Community Development and Services 30 School Street North Andover,MA 01845 -LPLANNING BOAR,D-1 Re: Lot 20A Bridle Path Dear Ms. Colwell: You have requested an opinion regarding a watershed special permit application for Lot 20A Bridle Path. Specifically,you have asked whether Lot 20A, a lot for single-family residential use, is grandfathered to qualify for a special permit for construction to occur within 100 feet horizontally from a tributary of Lake Cochichewick. As I understand the facts, a definitive subdivision plan entitled for "Great Pond Woodland" (Applicant: Landsail, Inc.) dated August 23, 1976, was approved and appears to have been endorsed by the Planning Board in December, 1976 (the "Definitive Plan"). Two adjacent lots, Lots 20 and 21 were part of the subdivision plan. At a June 26, 1978 Special Town Meeting,the Town voted to adopt Article 4 adding a section entitled "Watershed District",which prohibited construction from occurring "one hundred feet horizontally from the edge of all tributaries, except by special permit." The Town subsequently amended Section 4.133 of the Zoning By-laws 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." The 1985 amendment also added language stating "the intent herein is dimensional. PRINTED ON RECYCLED PAPER KOPELMAN AND PAIGE, P.C. Ms. Kathleen Bradley Colwell Town Planner March 17, 1998 Page 2 By deed recorded July 27, 1978, Landsail, Inc. deeded Lot 21 to Landsail Construction Corporation. The Definitive Plan was subsequently revised by a plan which was endorsed on April 3, 1979. The revised plan shows Lot 20A,the lot at issue, which includes a large portion of the former Lot 20 and a portion of the former Lot 21. 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,with an area of 9,301 sq. ft.,to Landsail Construction Corporation. By deed recorded January 18, 1982, Landsail, Inc. conveyed Lot 20A to Paul G. Cote and Henry Kucharzyk, Trustees of Hefco Realty Trust("Kucharzyk"). Kucharzyk has now filed an application with the Planning Board for a special permit for construction in the Watershed District. For the reason discussed below, it is my opinion that Lot 20A is a grandfathered lot under the fourth paragraph and,therefore,the special permit exception under Section 4.133 of the Zoning By-laws adopted in 1978 applies to Lot 20A. Paragraph 4 of Section 6 of G.L. c. 40A provides in relevant part: Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply for single and 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 . . . Under this section, it is the ownership of the lot in question and adjacent land at the time the zoning by-law requirements are adopted or increased which determines whether the lot is protected. Adamowicz v. Ipswich, 265 Mass. 757 (1985). In order for a lot to be grandfathered by preexisting zoning, there must be separate ownership of adjacent lots immediately prior to the zoning change. Id. at 762. Based on the information provided by the applicant's attorney, it appears that at the time of the zoning change in 1985, Lot 20A was owned separately from the adjoining lot. It also met the other statutory requirements in that it contained more than 5,000 sq. ft. of land,had more than 50 feet of frontage, and complied with the zoning in effect before the amendment. Pursuant to c.40A, §6,paragraph 4, a lot meeting these qualifications is protected from zoning changes which increase requirements for "area, frontage,width,yard or depth." There might have been an argument that the 1985 zoning amendment was related to use of the Watershed, but the amendment specifically stated that the intent was "dimensional." Accordingly, it is my opinion that the special permit exception of Section 4.133 of the Zoning By-law adopted in 1978, is available to Lot 20A.