HomeMy WebLinkAboutFEDERAL DEPOSIT INSURANCE CORP �w
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Town of North Andover
NORTq
OFFICE OF 3?oa 4t,to ,,.tieoL
' 1 COMMUNITY DEVELOPMENT AND SERVICES p
146 Main Street
7 p'► ro *P`y1'
KENNETH I-MAHONY North Andover,Massachusetts 01845 4SsgcNusEt
Director (508)688-9533
is ... filed
of Ler the BOARD OF APPEALS
. of fi,3 ; cf this Notice NOTICE OF DECISION-
the Office of the Town Property. 2 Autran Avenue
Cobblestone Develo went Corp. Date: 11-17-95
c/o 240 Candlestick Road Petition# :058 -95
North Andover, MA 01845 Date of Hearin 9-12-95
The Board of Appeals held a regular meeting on Tuesday evening, November 14,
1995 upon the petition of Cobblestone Development Corp. requesting variances
pursuant to Section 7, paragraph 7.1, 7.2, 7.3 and Table 2 of the Zoning Bylaw so
as to permit the existing structure to remain in its present location, size and
shape.
The following members were present and voting: William Sullivan, Walter Soule,
Scott Karpinski, Ellen McIntyre and Joseph Farris.
The hearing was advertised in the North Andover Citizen on 10.25.95 and 11.1.95
and all abutters were notified by regular mail.
Upon a motion by Walter Soule and seconded by Ellen McIntyre the board voted
unanimously to Grant the following Variances:
-relief of 7500 square feet of lot dimensional area from the required 12,500
square feet
-relief of 50 feet from the street frontage requirement of 100 feet
-relief of 5 feet from the front setback requirement of 30 feet
-relief of 5 feet from the left side setback requirement of 15 feet
Voting in favor: William Sullivan,Walter Soule,Scott Karpinski,Joseph Faris and
Ellen McIntyre.
The Board finds that the petitioner has satisfied the provisions of Section 10,
Paragraph 10.4 of the Zoning Bylaw and that the granting of these variances will
not adversely affect the neighborhood or derogate from the intent and purpose of
the Zoning Bylaw.
BOARD OF APPEALS,
W I n Sullivan, - 'rm
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BOARD OF APPEALS 688-9541 BUILDING 689-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535
Julie Parrino D.Robert Nieetta Michael Howard Sandra Starr Kathleen Bradley Colwell
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"he Office cf tine Town
CCerk. TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
NOTICE OF DECISION
Date . .May. .U, .1.993. . . . . . . . . . . . .
Petition No.. .Q 16-9 3. . . . . . . . . . . . .
April 13, 1993
Date of Hearing. .May, l,l,. .1993. . ..
Petition of . . .Feder.al .Deposi.t .Insurance .Corporation. . . . . . . . .. . . . . • . . . . . • . • • .
Premises affected . . . .2 .Autran. Avenue. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Referring to the above petition for a variation from the requirements of .Secz0.on .7,. . . . .
Paragraph 7.1, 7.2, 7.3 and Table 2 of.the. Zoning,Dylaw. . :... . . . . . . . . . . . .
so as to permit .exist.ing.structure_ to. remain. in .its.present:location,.size -and. . . .
.shape. coxisisting. .o.f .24.'X.4.4.1. .or. in,.the .al.terxxative. to. .modify. the .variance . . . . . . .
in 1985, petition 450-85.
After a public hearing given on the above date, the Board of Appeals voted to . .GRANT. . . . . the
. . .variance. . . . . . . . . . . . . . . . . . . . . . . . . and hereby authorize the Building Inspector to issue a
permit to . . . .Federal. Deposit. .Insurance. .Corporation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
fixdbY ��b�xirrax mxatx
Signed
'
Frank Serio, Jr. ,41hlairman
.Waltex. .Soule,. . . . . . . . .•.
. . . .Louis. Rissin. . . . . . . . . . . . . . . . . . .
. . . . . . .John. Pallone. . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . .
Board of Appeals
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DAAiED PPp`y.(5.
�SSACHUS��
TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
Federal Deposit Insurance Corporation * DECISION
c/o Theodore C. Regnante, Esquire
Regnante, Regnante, Sterio -& Osborne * Petition #016-93
One Essex Center Drive
Peabody, MA 01960
*
A public hearing was held on Tuesday, April 13, 1993,- at 7:30
p.m. and continued on Tuesday, May 11, 1993 at 7:3`0 p.m. , to
consider the Petition of the Federal Deposit Insurance
Corporation as a receiver of the NewBankof New England, N.A. ,
requesting a variance from Sections 7. 1, 7.2, 7.3 and Table 2 of
the North Andover ZoningBylawas said provisions apply to the
real estate known as 2 Autran Avenue, North Andover,
Massachusetts.
Assessor's Map 45C, Parcel 25 (the "Property") to permit the
existing single family residential structure to remain in its
present location, size and shape, or in the alternative, to
modify the variance granted in 1985, in the Board of Appeals
Petition No. 50-85 to provide that a single family residential
structure in the size of 24 ' `X 44' may be constructed.
Notice of the hearing was published in the North Andover Citizen
on March 24, 1993 and March 31, 1993 . On March 25, 1993, copies
of said notice were mailed, postage prepaid, to all parties shown
on the Assessor's most recent tax list as being entitled to
notice pursuant to M.G.L. Chapter 40A, Section 11.
The petitioner was represented by Theodore C. Regnante, Esquire,
of the firm of Regnante, Regnante, Sterio & Osborne, Peabody,
Massachusetts, who presented to the Board the facts in the case
and a plot plan entitled "Plan of Land in No. Andover, Mass."
Scale 1' = 40111 dated February 17, 1993 by Hayes Engineering,
Inc. , Civil Engineers and Land Surveyors (the "Hayes Plan") which
plan will remain on file with the Board.
1
FINDINGS OF FACT
The Petitioner, The Federal Deposit Insurance Corporation,
acquired the Property in its capacity as received of the New Bank
of New England, N.A. by virtueof a foreclosure deed dated
November 8, 1991 and recorded with the Essex North District
Registry of Deeds in Book 3409, Page 109.
On August 15, 1985, the Board, in Case No. 50-85, granted a
variance (herein referred to the "Variance" or the "Decision")
under Section 7, Paragraph 7.1, 7.2, 7.3 and Table 2 of the
Zoning Bylaw for the Town of North Andover to permit a` single
family residential structure to be constructed on the Property.
The Decision specifically provided that a single family
residential structure could be constructed on the 5,000 square
foot lot provided the following requirements were met: west side
setback of 15 feet; rear setback of 25 feet and east side
setback of 10 feet. The Hayes Plan shows clearly that these
requirements have been met. The Hayes Plan does show uncovered
stairs on the east and west sides of the building which appear to
encroach over the required side setback limits. However, Section
7 . 3 of the Zoning Bylaw provides that uncovered steps are
excluded when computing minimum setback requirements so the
Property as shown on the Hayes Plan complies with the conditions
of the Variance.
The Notice of Decision for the Variance was drafted to indicate
that the original application for the Variance stated the size of
the structure to be constructed as 281X301 . Notwithstanding this
reference in the Notice of Decisions, the Decision and the Notice
of Decision did not mandate the maximum size of the structure to
be constructed. The Chairman of this Board, Frank Serio, Jr. ,
was also the Chairmanofthe Board which granted the Variance in
1985. Mr. Serio stated that the inclusion of any size limitation
of the structure on the Notice of Decision in 1985 was a
scrivener's error, and that no size limitations were included in
the actual Decision.`
On August 30, 1985, the Board issued a letter stating that the
Decision did not clearly delineate the required statutory
findings upon which the issuance of the Variance was based. This
letter specifically stated that the requirements of Section 10.4
of the Zoning Bylaw had been satisfied. The Board found that
"the lot in question was deeded as a separate lot; that the size
of lots in the immediate area are of a similar size and the Board
has granted in the past in this neighborhood similar variances.
The hardship in question related to the use of the lot because of
its size and shape and the change of zoning in the area which
prohibited its use for residential purposes." The Board further
found that the relief granted was not a detriment to the public
good and in fact was beneficial thereto by providing necessary
affordable housing.
2
a
Abutters to the Property, Paul S Connors and Maureen A. Connors,
appealed the Decision in the Essex County Superior Court, Civil
Action No. 82-2151, on the basis that the Board exceeded its -
authority in granting a variance without the required statutory
findings. Various negotiations between the parties thereafter
resulted in the settlement of the case and a Stipulation of
Dismissal in the Superior Court case was allowed on December 29,
1986 setting forth , the settlement terms which included the
payments of $6,5000.00 to the Connors. A Notice of Compliance
was filed with the Essex North District Registry of Deeds on
March 2, 1987 in Book 2437, Page 301, evidencing compliance, with
the settlement terms. The doctrine of Res Judicata prohibits the
abutters, the Connors, from further challenging the validity of
the Decision whether on the basis of the adequacy of the required
statutory findings or any other basis.
After construction on the Property commenced in accordance with
the Variance, the Connors issued written requests to the Building
Inspector to prohibit further construction and revoke the
building permit. The Connors stated that the structure, as
built, was 23 ' X 44 ' and was larger than the 28' X 30' structure
that the Variance purportedly permitted. The Building Inspector
refused to interfere with construction stating that the structure
was -constructed in accordance with the , Variance and a validly
issued building permit. The Connors appealed the decision of the
Building Inspector to the Board of Appeals in Case No 28-89. On
January 11, 1989, the Board voted to uphold actions of the
Building Inspector and the issuance of the building permit on the
grounds that the existing structure complied with all the
requirements of the Variance.
The Connors appealed the Board's decision to uphold the action of
the Building Inspector and the issuance of the Building Permit to
the Land Court Departmentofthe Trial Court, Miscellaneous Case
No. 131946 (the "Land Court Case") . On September 14, 1989, the
Court, By Judge Cauchon, issued a decision stated that the
Variance was validly granted and "cannot be collaterally
attached", but that the Variance should be interpreted as
including a limitation onthesize of the structure of 28' X 301 .
Mr. Serio stated that this Board has never mandated building size
in any variance decisions and did not intent to do so in the
present case. The Board notes that there are no maximum lot
coverage requirements set forth in the Zoning Bylaw for
structures located in R-4 Districts and any mandate of structure
size would exceed the authority of the Board.
Grant of Relief
The Board hereby grants the following reliefs
1. The Board hereby clarifies its intent in its decision in
3
t
Case No. 50-85 to wit: that the Variance does not include any
condition limiting building size. Provided the set back
requirements as set forth in the Decision have been satisfied
(which compliance is evidenced on the Hayes Plan) the Board did
not mandate building size and in fact does not have the authority
to mandate building size in "R-4 Districts. The structure as
constructed an currently existing, and shown on the Bayes Plan
has at all times complied and presently complies with the
Variance as granted. The Board hereby reaffirms the granting of
the Variance and the specific statutory findings outlined int he
Decision and the clarifying letter and as set forth above.
2 . To the extent that Judge Cauchon's decision in the Land
Court Case was intended to require this Board to modify the
Board's Decision in Case No. 50-85, the Decision is hereby so
modified to eliminate the requirement that the structure not
exceed 28 ' X 301 . The statutory findings required for the
issuance of a Variance discussed in Paragraph 1 above are hereby
reaffirmed.
3 . To the extent that Judge Cauchon's decision in the land
Court Case require a new variance, the Board hereby grant
Petitioner's application for a variance from the requirements of
Section 7, Paragraph 7.1, 7.2, 7.3 and Table 2 of the Zoning
Bylaw to permit the single family residential structure in its
current size (23 ' X 44 ' with -a 1' overhang on the second floor)
as shown on the Hayes Plan to remain as constructed.
The statutory requirements of the Bylaw which the Board must find
inorder to grant variances are as follows:
" . . .owing to circumstances relating to soil
conditions, slope, or topography of the land or
structures, and especially affecting such land or
structures but not affecting generally the zoning
district in general, a literal enforcement of the
provisions of this Bylaw will involve substantial
hardship, financial or otherwise, to the petitioner
or applicant, and that desirable relief may be
granted without substantial detriment to the public
good and without nullifying or substantially
derogating from the intent or purpose of this Bylaw. "
Massachusetts GeneralLaws Chapter 40A, Section 10 states that
permit granting authorities may grant variances when they find
" . . .circumstances relating to the soil
conditions, shape or topography of such
land or structures and especially affect-
ing such land or structures but not affecting
generally the zoning district in which it is
located, a literal enforcement of the provisions
of the ordinance or bylaw would involve
4
substantial hardship, financial or otherwise,
to the petitioner or appellant, and that desirable
relief may be granted without substantial detriment
to the public good and without nullifying or
substantially derogating from the intent or purpose
of such ordinance or Bylaw. "
The lot consists of 5,000+ square feet and was laid out on a plan
of land filed with the Essex North Registry of Deed as Plan 406
in 1920 (the 111920 Plan") . Most of the Tots on the 1920 Plan
consist of 4,500 or 5,000 square feet. A change in zoning
subsequent to the 1920 Plan prohibits the Property from being
used for single family residential purposes without a variance.
The Property is unique in that it is surrounded by either single-
family homes on larger lots (which larger lots were created by
combining lots on the 1920 Plan) , or on undersized lots for which
variances were granted to permit construction. This lot appears
to be one of the only undersized lots left on the 1920 Plan in
the immediate neighborhood that is affected. The location and
shape of this lot best lend itself to a single-family residential
use. The intent and purpose of the Bylaw is to encourage the
most appropriate uses of property.
The Board finds that the Property has been deeded as a separate
lot and Petitioner's ; predecessors in title have relied on its
ability to be used for a single family residential dwelling. By
granting Petitioner's Variance and permitting the existing single
family residential structure to remain on this undersigned lot,
North Andover will be provided with an additional unit of much
needed affordable housing,
The Board specifically finds circumstances exist which affect
only the Property such that a literal enforcement of the Zoning
Bylaw would result in hardship to the Petitioner. The granting
of this Variance permitting the existing single-family
residential structure to remain in its present size and location
will not result in substantial detriment to the public good and
will not nullify or substantially derogate from the intent or
purpose of the North Andover Zoning Bylaw.
Dated this 18th day of May 1993.
BOARD OF APPEALS
61�
Frank 9eriVo
Chairman
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1 6Oil Af
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS LAND COURT DEPARTMENT
Docket Number
PAUL S. CONNORS AND ) r 9 j y
MAUREEN A. CONNORS,
Plaintiffs
I 3
VS. j
FRANK SERIO, JR. , WILLIAM
J. SULLIVAN, WALTER SOULE
RAYMOND VIVENZIO, LOUIS )
RISSIN, DMD, ROBERT P. FORD, j
AND JOHN PALLONE, AS THEY
l ARE MEMBERS OF THE ZONING j
BOARD OF APPEALS FOR THE }
TOWN OF NORTH ANDOVER AND j
the FEDERAL DEPOSIT
INSURANCE CORPORATION, ASA }
j RECEIVER OF THE NEW BANK OF j
f NEW ENGLAND, N.A. , PETITIONER)
!" Defendants j
I
I NOTICE OF APPEAL
Dear Ladies/Gentlemen:
Please take note that Paul S. Connors and Maureen A.
Connors appeal from the decision of the Board of Appeals
{ granting a variance/variances in connection with the 2
Autran Avenue real estate in case number 16-93.
Enclosed herewith is a copy of the Complaint filed with the
Massachusetts Land Court pursuant to the provisions of G.L.
C. 40A, Section 17.
Kindly file this letter and the Complaint and please stamp
` a copy of this letter as having been received by your
office at this time for my file.
I AAttzrn
ely,
se,
for Paul S.
r and Maureen A.
Connors
1
RJA:md
enc.
Ij #
COMMONWEALTH OF MASSACHUSEA
SUFFOLK, SS LAND COURT DEPARTMENT
Docket Number
PAUL S. CONNORS AND j ` r(�y°2 20,
MAUREEN A. CONNORS,. )
Plaintiffs )
VS.
FRANK SERIO, JR. , WILLIAM )
J. SULLIVAN, WALTER SOULE j
RAYMOND VIVENZIO, LOUIS )
RISSIN, DMD, ROBERT P. FORD, )
AND JOHN PALLONE, AS THEY )
ARE MEMBERS OF THE ZONING )
BOARD OF APPEALS FOR THE )
TOWN OF NORTH ANDOVER AND )
the FEDERAL DEPOSIT )
INSURANCE CORPORATION, ASA )
RECEIVER OF THE NEW BANK OF )
NEW ENGLAND, N.A. , PETITIONER)
Defendants )
COMPLAINT IN ACCORDANCE WITH THE PROVISIONS
OF THE G.L. C. 40A, SECTION 17
1. The Plaintiffs pursuant to G.L. C. 40A, Section 17,
appeal the decision of the Board of Appeals for the Town of
North Andover ("the Board of Appeals") allowing the
( Petitioner, Federal Deposit Insurance Corporation's
! application for a variance from the provisions of Section t
7.1, 7.2, 7.3 and Table 2 of the North Andover Zoning Bylaw
with regard to real estate located at 2 Autran Avenue,
North Andover, Massachusetts, said decision dated May 18 of
1993, said decision filed in the Town Clerk's Office for
the Town of North Andover on May 18 of 1993 at 3:52 p.m.
2. The Plaintiffs, Paul S. Connors and Maureen A. Connors
are residents of North Andover, Essex County,
Massachusetts, owning a home and residing in that home at
18 Autran Avenue, North Andover, Massachusetts.
Plaintiffs' real estate abuts the real estate which is the
subject matter of this Complaint, i.e. the real estate
located at number 2 Autran Avenue, North Andover,
Massachusetts.
3. The Defendants, Frank Serio, Jr. , William J. Sullivan,
Walter Soule, Raymond Vivenzio, Louis Rissin, DMD, Robert
I�
P. Ford and John Pallone are members of the Board of
Appeals for the Town of North Andover who reside in the
Town of North Andover as follows:
Frank Serio, Jr. William J. Sullivan
250 Hillside Road 405 Salem Street
North Andover, MA 01845 North Andover, MA 01845
Walter Soule Raymond Vivenzio
17 Raleigh Tavern Lane 11 Appledore Lane
North Andover, MA 01845 North Andover, MA 01845
Louis Rissin, DMD Robert P. Ford
59 Blueberry Hill Lane 89 Bear Bill Road
North Andover, MA 01845 North Andover, MA 01845
John Pallone
67 Vest Way
North Andover, MA. 01845
4. The Defendant Petitioner, Federal Deposit Insurance
Corporation has a mailing address for the purpose of the
Application for Variance in care of Theodore C. Regante,
Esquire, One Essex Center Drive, Peabody, Mass. 01960.
5. The Plaintiffs own a parcel of land located at 18 Autran !
Avenue, North Andover, Essex County, Massachusetts, +
containing a single-family structure in which they reside 1�
with their children which property lies in an R-4 zone,
i.e. residential zone, as defined within the Zoning Bylaw
for the Town of North Andover.
6. Petitioner, Federal Deposit Insurance Corporation filed
an application for variance with the Zoning Board of
Appeals for the Town of North Andover "to permit the
existing single family residential structure at 2 Autran
Avenue to remain in its present location, size and shape or
in the alternative to modify the variance previously
granted in 1985 in Board of Appeals petition number 50-85
in order to provide that a single family residential
structure in the size of 241 by 44' may be constructed."
I (See paragraph_ 2 of the decision of the North Andover
Zoning Board, dated May 18 of 1993.)
7. The 2 Autran Avenue, North Andover, Massachusetts real
estate has been the subject of a prior zoning appeal to
j this Court in Land Court docket number 131946 which
i involves an appeal by Plaintiffs from a prior decision of
I the Zoning Board of Appeals for the Town of North Andover
-2-
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i on January 11 of 1989 case number 28-89, the substance of
which upheld the decision of the Building Inspector for the
Town of North Andover in not enforcing the terms of a grant
of variance by the Board allowing construction of a 30' by
28' single family structure at the locus. Plaintiffs had h
complained to the Building Inspector that the: building as i
constructed was in fact 24' wide and 441 deep thus t
exceeding the limits of the variance granted by the Zoning
Board on August 15 of 1955 in case number 50-85 allowing
construction of a single family structure 30' by 281 .
8. On September 14 of 1989, this Court issued a decision in
case number 131946 stating that the variance granted in 1
t case number 50-85 was validly granted but that the variance (
must be interpreted as including a limitation on the size j
of the structure of 30' by 28' because both the application
for variance filed by the Petitioner in case number 50-85
,f and the notice of decision issued by the Zoning Board of
Appeals for the Town of North Andover in that case
1 indicated that the building size was to be 30' by 28' and
not 24' by 441 .
9. No appeal to the Appeals Court was filed by the then
owners of the 2 Autran Avenue real estate, Vincent J.
McAloon and Louis McAloon with respect to the judgment of
this Court.
` 10. The original grant of variance in case number 50-85 on
August 15 of 1985 was made to W. Thomas Bower and Louise A.
Bower, the then owners of the 2 Autran Avenue real estate.
11. Subsequent to that grant of variance, Mr. and Mrs.
Bower sold the 2 Autran Avenue real estate to Vincent J.
McAloon and Louis McAloon.
12 . Plaintiffs, Paul S. Connors and Maureen A. Connors had
i appealed the grant of variance in case number 50-85 to
I Essex Superior Court and following negotiations between
I� themselves and counsel for the Bowers, the Connors withdrew
their appeal in that case and received payment of the sum
:} of $6,500.00 from the Bowers.`
I.
The terms of that settlement were predicated upon the
structure to be built on the 2 Autran Avenue real estate
being 30' by 281. At no time during the course of the
settlement discussions was there any discussion between the
Connors and the Bowers about a structure being built upon
the 2 Autran Avenue lot with the dimensions of 24' by 441 .
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13. The original application for variance filed by the
Bowers in case number 50-85 sought zoning relief from the
lot area, street frontage, side yard and set back
requirements of the Town of North Andover Zoning Bylaw for
the purpose of constructing a single family residential
dwelling upon the lot with the dimensions of the structure
to be 30' by 281 .
14 . The 2 Autran Avenue lot contains 5,000 square feet of
4 land.
15. At the time the application for variance was filed in
case number 50-85, the Zoning Bylaw for the Town of North
Andover provided for a 12,500 square foot lot area
requirement, a 100 foot streetfrontagerequirement and a -
15 foot side yard setback requirement for construction of a
single family dwelling.
16. Consequently, the R-4 residential zone in which the
subject real estate islocatedrequires frontage of 100
i feet and the locus has only 50 feet of frontage. In
addition, the dwelling has a 10 foot side line set back and
the R-4 zoning district requires a 15 foot side line set
back.
17. Plaintiffs, Paul S. Connors and Maureen A. Connors
notified officials for the TownofNorth Andover that the
building which was being constructed at the 2 Autran Avenue
real estate exceeded the 30' by 28' dimensions allowed by i
wthe grant of variance in case number 50-85 just as soon as
the foundation for the structure was constructed. Despite III
I� numerous requests in written form to various officials for
the Town of North Andover including the Building Inspector
and the Zoning Board of Appeals, construction of the 24' by
44' building was allowed to continue by the Town of North
Andover and as mentioned previously, this Court on a Motion
for Summary Judgment ultimately concluded that the
structure as constructed exceeded the allowable dimensions
of the grant of variance in case number 50-85.
I
18. On May 18 of 1993 in North Andover Board of Appeals
case number 16-93, the Board of Appeals by unanimous vote
allowed the Petitioner, Federal Deposit Insurance
Corporation's application for a variance so as to permit
the existing structure to remain in its present location,
size and shape, containing dimensions of 24' by 44' or in
i the alternative to modify the variance granted in 1985 in
case number 50-85 such as to allow the 24' by 44' structure
to remain rather than a structure 30' by 281 .
-4-
19. As aforementioned, the Zoning Board of Appeals decision
in the instant case was filed in the Town Clerk's Office on
May 18 of 1993 and a certified copy of that decision is
attached hereto and marked Exhibit A.
20. The Plaintiffs are persons:aggrieved within the meaning
4 of G.L. C. 40A, Section 17 as a result of the decision of
the Board of Appeals in allowing the petition for variance
filed by the Federal Deposit Insurance Corporation in this
matter.
21. The decision of the Board of Appeals in allowing the
petition of the Federal Deposit Insurance Corporation
exceeded the authority of the Board of Appeals for the Town
of North Andover.
WHEREFORE, the Plaintiffs, respectfully pray that this
Court take the following action:
1. Hear all pertinent evidence and determine the facts;
2. Determine and adjudge that the Board of Appeals decision
in allowing the aforementioned petition for variance is
error as a matter of law and fact and that the Board of
Appeals exceeded its authority;
3. Order the Building Inspector for the Town of North
Andover to enforce the substance of the August 15, 1985
Zoning Board of Appeals decision and the decision of this
Court in case number 131946; and
4 . Annul the decision of the North Andover Zoning Board of
Appeals in case number 16-93
5. Grant such further relief as justice and the rights of
the parties may require.
Respectfully,
I
Paul S. Connor and
Maureen A. Connors, by
I their torney:
i
1
99 Massa setts Avenue
Arrington, Mass. 02174
Telephone: 617-646-4911
Dated: June 3, 1993
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MASSACHUMM
ATMST:
A True CoFy BOARD OF A"MU
' •�-C NOTICE OF DECISION
Town Clerk
Date . .Kay.A& .1993 ............
Petition Na..016-93..
April .
13,�1993
Date of Hea:ing..Mgy.11.1 .1993.
Petition of . . .Federal .Deposit .Insurance.Corpoz:ation. . . . ....................... .... ...
Premises affected . . . 2 .Autran Avenue. . . . .....; . . .... ..... .. ••••••• .
Referring to the above petition-for a variation hom the requireMMU of*9.SeCticm.I......
Paragraph 7 1 t 7.2, 7.3 and Table 2,of the, onng. SY.1.aW_. .. . . .. .. .. . ... .. .
so as to permit .exis.t.i,ng.structure.to. xemain.in .its.present.locatiou,.size-and• .•.
.shape. Consisting. of .24'X.44.' .Qr.Ui..the .eltemative. to. anodify.,the .variance ......
in 1985, Petition #50-85. the
After a public hearing given on the above date,the Board of Appeals voted do . GRANT. . •. .
variance. . . . . . . . . . . . . . . . . . . .. . . . . . and hereby authorize the Budding Inspector to iesne a
Permit to . . . .Federal. Deposit. Insurance .Corporation. . . . . . . . . . .. . .. . . . . . ....... .. .... ..
t8itlIN
sigAd •
Frank Serio, Jr.,4airman
. .. . . . . . .Walter. .Soule. . . . . . . ...... .... .
. .Louis.Rissin. . ..... ... . ...... . .
. . . . . . .Jobn. Pallone. .. . . . ... . . . . .. . . .
.... . .
B�of APS
Any apneaj s"a'j b-� filed r;4
WI&I j,; "70 ^err ••" Vie
993
in 111:: Vifice^' C)r If1L' TGni n # � r "� yA� {� 3 52 •
t
TOWN OF NORTH ANDOVER � a
MASSACHUSETTS A Tho Can
BOARD OF APPEALS
Town Clete
*
Federal Deposit Insurance Corporation * DECISION
c/o Theodore C. Regnante, Esquire
Regnante, Regnante, Sterio & ,Osborne * Petition #016-93
One Essex Center Drive
Peabody, MA 01960
A public hearing was held on Tuesday, April 13, 1993, at 7:30
p.m. and continued on Tuesday, May 11, 1993 at 7:30 p.m. , to
consider the Petition of the Federal Deposit Insurance
Corporation as a receiver of the New Bank of New England, N.A. ,
requesting a variance from Sections 7.1, 7.2, 7.3 and Table 2 of
the North Andover Zoning Bylaw as said provisions apply to the
real estate known as 2 Autran Avenue, North Andover,
Massachusetts.
Assessor's Map 45C, Parcel 25 (the "Property") to permit the
existing single family residential structure to remain in its
present location, size and shape, or in the alternative, to
modify the variance granted in 1985, in the Board of Appeals
Petition No. 50-85 to provide that a single family residential
structure in the size of 241 X 44' may be constructed.
Notice of the hearing was published in the North Andover Citizen
on March 24, 1993 and March 31, 1993. On March 25, 1993, copies
of said notice were mailed, postage prepaid, to all parties shown
on the Assessor's most recent tax list as being entitled to
notice pursuant to M.G.L. Chapter 40A, Section 11.
The petitioner was represented by Theodore C. Regnante, Esquire,
of the firm of Regnante, Regnante, Sterio & Osborne, Peabody,
Massachusetts, who presented to the Board the facts in the case
and a plot plan entitled "Plan of Land in No. Andover, Mass.„
Scale 1' = 401 , dated February 17, 1993 by Hayes Engineering,
Inc. Civil Engineers and Land Surveyors (the "Hayes s Plan„ which
plan will remain on file with the Board.
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FINDINGS OF FACT
The Petitioner, The Federal Deposit hnsurance Corporation,
acquired the Property in its capacity as received of the New Bank
ofNew England, N.A. by virtue of a foreclosure deed dated
.
November 8, 1991 and recorded with the Essex North District
Registry of Deeds in Book 3409, Page 109.
On August 15, 1985, the Board, in Case No. 50-85, granted a
variance (herein referred to the "Variance" or the "Decision")
under Section 7, Paragraph 7.1, 7.2, 7.3 and Table 2 of the
Zoning Bylaw for the Town of North Andover to permit a single
family residential structure to be constructed on the Property.
The Decision specifically provided that a single family
residential structure could be constructed on the 5,000 square
foot lot provided the following requirements were met: west side
setback of 15 feet; rear setback of 25 feet; and east side
setback of 10 feet. The Hayes Plan shows clearly that these
requirements have been met. The Hayes Plan does show uncovered
stairs on the east and west sides of the building which appear to,
encroach over the required side setback limits. However, Section
7.3 of the Zoning Bylaw provides that uncovered steps are
excluded when computing minimum setback _ requirements so the
Property as shown on the Hayes Plan complies with the conditions
of the Variance.
The Notice of Decision for the Variance was drafted to indicate
that the original application for the Variance stated the size of
the structure to be constructed as 28'X301 . Notwithstanding this
reference in the Notice of Decisions, the Decision and the Notice
of Decision did not mandate the maximum size of the structure to
be constructed. The Chairman of this Board, Frank Serio, Jr. ,
was also the Chairman of the Board which granted the Variance in
1985. Mr. Serio stated that the inclusion of any size limitation
of the structure on the Notice of Decision in 1985 was a
scrivener's error, and that no size limitations were included in
the actual Decision.
On August 30, 1985, the Board issued a letter stating that the
Decision did not clearly delineate the required statutory
findings upon which the issuance of the Variance was based. This
letter specifically stated that the requirements of Section 10.4
of the Zoning Bylaw had been satisfied. The Board found that
"the lot in question was deeded as a separate lot; that the size
of lots in the immediate area are of a similar size and the Board
has granted in the past in this neighborhood similar variances.
The hardship in question related to the use of the lot because of
its size and shape and the change of zoning in the area which
prohibited its use for residential purposes." The Board further
found that the relief granted was not a detriment to the public
good and in fact was beneficial thereto by providing necessary
affordable housing.
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Abutters to the Property, Paul S. Connors and Maureen A. Connors,
appealed the Decision in the Essex County' Superior court,- Civil
Action No. 82-2151, on the basis that the Board exceeded its
authority in granting a variance without the required statutory
findings. Various negotiations between the parties thereafter
resulted in the settlement of the case and a Stipulation of
Dismissal in the Superior Court case was allowed on December 29,
1986 setting forth the settlement terms which included the
payments of $6,5000.00 to the Connors. _ A Notice of Compliance
was filed with the Essex North District Registry of Deeds on
March 2, 1987 in Book 2437, Page 301, evidencing compliance with
the settlement terms. The doctrine of Res Judicata prohibits the
abutters, the Connors, from further challenging the validity of
the Decision whether on the basis of the adequacy of the required
statutory findings or any other basis.
After construction on the Property commenced in accordance with
the Variance, the Connors issued written requests to the Building
Inspector to prohibit further construction and revoke the
building permit. The Connors stated that the structure, as
built, was 23 ' X 44' and was larger than the 28' X 30' structure
that the Variance purportedly permitted. The Building Inspector
refused to interfere with construction stating that the structure
was constructed in accordance with the Variance and a validly
issued building permit. The Connors appealed the decision of the
Building Inspector to the Board of Appeals in Case No 28-89. On
January il, 1989, the Board voted to uphold actions of the
Building Inspector and the issuance of the building permit on the
grounds that the existing structure complied with all the
requirements of the Variance:
The Connors appealed the Board's decision to uphold the action of
the Building Inspector and the issuance of the Building Permit to
the Land Court Department of the Trial Court, Miscellaneous Case
No. 131946 (the "Land Court Case") . On September 14, 1989, the
Court, By Judge Cauchon, issued a decision stated that the
Variance was validly granted and "cannot be collaterally
attached" , but that the Variance- should be interpreted as
including a limitation on the size of the structure of 28' X 301 .
Mr. Serio stated that this Board has never mandated building size
in any variance decisions and did not intent to do so in the
present case. The Board notes that there are no maximum lot
coverage requirements set forth in the Zoning Bylaw for
structures located in R-4 Districts and any mandate of structure
size would exceed the authority of the Board.
Grant of Relief
The Board hereby grants the following relief:
1. The Board hereby clarifies its intent in its decision in
3
Case No. 50-85 to wit: that the Variance does not include any
condition limiting building size. Provided the set back
requirements as set forth in the Decision have been satisfied
(which compliance is evidenced on the Hayes Plan) the Board did
not mandate building size and in fact does not have the authority
to mandate building size in R-4 Districts. The structure as
constructed an currently existing, and shown on the Hayes Plan
has at all times complied and presently complies with the
Variance as granted. The Board hereby reaffirms the granting of
the Variance and the specific statutory findings outlined int he
Decision and the clarifying letter and as set forth above.
2. To the extent that Judge Cauchon's decision in the Land-
Court Case was intended to require this Board to modify the
Board's Decision in Case No. 50-85, the Decision is hereby so
modified to eliminate the requirement that the structure not
exceed 28' X 301 . The statutory findings required for the
issuance of a Variance discussed in Paragraph 1 above are hereby
reaffirmed.
3. To the extent that Judge Cauchon's decision in the land
Court Case require a new variance, the Board hereby grant
Petitioner's application for a variance from the requirements of
Section 7, Paragraph 7.11 7.2, 7.3 and Table 2 of the Zoning
Bylaw to permit the single family residential structure in its
current size (23' X 44' with a i' overhang on the second floor)
as shown on the Hayes Plan to remain as constructed.
The statutory requirements of the Bylaw which the Board must find
in order to grant variances are as follows:
". . .owing to circumstances relating to soil
conditions, slope, or topography of the land or
structures, and especially affecting such land or
structures but not affecting generally the zoning
district in general, a literal enforcement of the
provisions of this Bylaw will involve substantial
hardship, financial or otherwise, to the petitioner
or applicant, and that desirable relief may be
granted without substantial detriment to the public
good and without nullifying or substantially
derogating from the intent or purpose of this Bylaw."
Massachusetts General Laws Chapter 40A, Section 10 states that
permit granting authorities may grant variances when they find
". . .circumstances relating to the soil
conditions, shape or topography of such
land or structures and especially affect-
ing such land or structures but not affecting
generally the zoning district in which it is
located, a literal enforcement of the provisions
of the ordinance or bylaw would involve
4
c
. w .
substantial hardship, financial or otherwise,
to the petitioner or appellant, and that desirable
relief may be granted without substantial detriment
to the public good and without nullifying or
substantially derogating from the intent or purpose
of such ordinance or Bylaw."
The lot consists of 5,000+ square feet and was laid out on a plan
of land filed with the Essex North Registry of Deed, as Plan 406
in 1920 (the „1920 Plan") . Most of the lots on the 1920 Plan
consist of 4,500 or 5,000 square feet. A change in zoning
subsequent to the , 1920 Plan prohibits the Property from being
used for single family residential purposes without. a variance.
The Property is unique in that it is surrounded by either single-
family homes on larger lots (which larger lots were created by
combining lots on the1920Plan) , or on undersized lots for which
variances were granted to permit construction. This lot appears
to be one of the only undersized lots left on the 1920 Plan in
the immediate neighborhood that is affected. The location and
shape of this lot best lend itself to a single-family residential
use. The intent and purpose of the Bylaw is to encourage the
most appropriate uses of property.
The Board finds that the Property has been deeded as a separate
lot and Petitioner's predecessors in title have relied on its
ability to be used 'for a single family residential dwelling. By
granting Petitioner's Variance and permitting the existing single
family residential structure to remain on this undersigned lot,
North Andover will be provided with an additional unit of much
needed affordable housing.
The Board specifically finds circumstances exist which affect
only the Property such that a literal enforcement of the Zoning
Bylaw would result in hardship to the Petitioner. The granting
of this Variance permitting the existing single-family
residential structure to remain in its present size and location
will not result in substantial detriment to the public good and
will not nullify or substantially derogate from the intent or
purpose of the North Andover Zoning Bylaw.
Dated this 18th day of May 1993.
BOARD OF APPEALS
Frank Serio
Chairman
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