HomeMy WebLinkAbout1988-10-11 The Board of Appeals held a regular meeting in the Conference Library at Town
Hall on Tuesday evening, October 11, 1988 at 7:30 p.m. The following members were
present and voting: William Sullivan, Acting Chairman, Augustine Nickerson, Clerk,
Walter Soule, Anna O'Connor, Raymond Vivenzio, and Louis Rissin. The meeting opened
at 7:35 p.m.
PUBLIC HEARINGS
Douglas R. MacMiff
William S. MacLeod
Special Permit
163 Salem Street
Legal notice read by Mr. Nickerson. David MacLeod spoke regarding this petition.
An appeal from denial of original application for identical special permit is now
pending in the Essex Superior Court, dated 1985. This was denied because of no
sewer line on street and within the watershed district. The petitioner claims that
this area is grandfathered. He stated that the Planning Board stated that a common
driveway is the best way to go. They need a variance to build within 100' of a
wetland. This project has been reviewed by the NACC and they granted approval for
a septic system on the first petition. The Title 5 requirement has been met and
they feel that they should get the Special Permit because of other ones that have
been approved 78' from the tributary to Lake Cochichewick, and got a 22' relief
for this.
Mr. Sullivan asked if anyone was in favor or opposed to this petition? Mr. Bjornson
asked how the situation of the 100' requirement has improved since the original
petition was refused and why this is coming up again? It came up when the pCoperty
~as for sale in 1985 and it is up for sale again, and things have not improved as
to the water supply.
Mr. MacLeod stated this location has a building 22' closer to the tributary to
the lake and this will not have any adverse affect on the tributary or the lake.
Mr. Vivenzio asked why this wasn't a variance instead of a Special Permit? The
Town Meeting of 1985 changed the bylaw so it is subject to the bylaws of the May
1985 meeting. Mr. Vivenzio stated that because it is denied, you are treating this
as a new application. Mr. MacLeod~ said it is the same way we treated it with the
Planning Board, because of the litigation, it is a reconsideration and not a new
petition. Mr. Vivenzio asked the petitioner, if we do not act on this, would you
feel this should be a variance and not a Special Permit? Mr. Sullivan stated that
there was nothing in the legal notice to show this.
Mr. MacLeod said that the petition is stated that way and they feel it is a reason-
able decision and do not feel that a sewer system is needed because the NACC has
ok'ed a septic system. The action at Town Meeting was after the petition had been
applied for. The driveway will not have any bearing on the tributary to the Lake.
Mr. Nickerson stressed that he did not feel we should change our decision now, and
feels that nothing has changed from the original petition and the two-year period
has elasped. Mr. MacLeod said they are back because the case is still in the courts
and feels that this should be reviewed and changed.
Mr. Sullivan stated that the original Board should be the ones to make any decision
changes, and the water supply in this town is a very important issue in this part
of town as well as every other part of town. Mr. Soule stressed that this Board has
been very reluctant to grant any petitions around the lake or its tributaries. The
Board has to care more about the water supply to the Town. We have to care more
about this water supply and the Zoning ByLaws are very explicit about this and our
Board has not bent on any rules about this. Mr. Nickerson questioned whether this
is a Special Permit or a reconsideration, and Mr. Vivenzio stated that the two years
had already gone by.
Mr. MacLeod stated that the lot in particular was submitted to the Planning Board in
1984 and there was no moratorium and there was a Special Permit needed if within 100'
of a tributary of the lake. This Speical Permit was denied by the ZBA. The
particular wetland in question slopes down to the Lake. There is only one place on
the lot that the septic system can go and we have placed it there. This is the most
desirable and best place according to State Environmental codes.
MacMiff - MacLeod, con'd
Page 2
It would cause less upset by putting in a common driveway. The lot is 2 acres and
it is impossible to put the septic system any other place. There is no sewer on
Salem St. or they would have tied into it. Mr. Sullivan stated that the nearest line
is about 1/4 miles away. Mr. MacLeod stated that if the Special Permit were granted,
the Board could put conditions on it with regard to the sewer lines coming onto the
street at a future date, and requiring them to tie in at that time. The NACC think
a septic system is ok because of the topography of the land. Everything from an en-
vironmental point has been done on this lot. When asked by Mr. Nickerson, the peitioner
stated that the one thing that was differnt from the original petition was that the
moratorium was applied after the original petition was submitted, and we are now 6
months after the moratoriun. Mr. Vivenzio feels that it should have been submitted as
a variance and Mr. Nickerson said that the question of whether it is a variance or a
Special Permit must be resolved. Mr. Soule does not recall any other petition like
this being approved by the Town.
Upon a motion made by Mr. Nickerson and seconded by Ms. O'Connor, the Board voted,
unanimously, to take this matter under advisement. (Sullivan, Soule, Nickerson, O'Connor
Vivenzio).
An~elina Conti - Variance - 71 Riverview Street
Legal notice read by Mr. Nickerson, Clerk. Mr. John Blomquist, son-in-law spoke
for Mrs. Conti and showed plans to the Board. He said that his father-in-law had
died and Mrs. Conti wants her daughter and husband to move into North Andover to
be near her. The house in the back has a right-of-way and a driveway to the house.
There is pavement to the second lot,does not extned beyond the second house. He
showed the site of the proposed boat ramp to the Board. He wants to split the lot
into two lots. The garage would be taken down and they would put another single
family house on the new lot. 7,000' for the old lot in an R4 zone.
Mr. Sullivan asked if anyone was in favor of this petition? Mr. B. Sands supports
the petition. He is an abutter and has no objections. Mr. Sullivan asked if anyone
was in opposition to this petition? Mr. Robert Nicetta, Building Inspector, spoke in
opposition to this petition because he feels that they should get some legal service
since this would create two (2) lots of only 50' frontage. He read Section B of the
Flood Insurance Rate Map as follows: "Areas between limits of the 100-year flood and
500-year flood; or tertian areas subject to 100-year flooding with average depths less
than one (1) foot or where the contributing drainage area is less than one square mile;
or areas protected by levees from the base flood." Mr. Nicetta went down to see the
property and it is zoned A-l(flood area). At the site it continues down to the
Merrimack River and he does not want to see a house built in the flood zone. He stated
that the NACC does not have any control over flood zones. The Board discussed the
flood zoning at length; Mr. Nickerson asking if the Town would be responsible for any
flood damage, and Mr. Vivenzio said no, but that the petitioner would have to obtain
flood insurance before any bank would finance this project. Mr. Rissin stated that
7,000 sq. ft. is not in conformity with the rest of the homes in the area. A map
of the flood zone areas was shown to the Board. Mr. Nicetta stressed that should the
Board allow this petition, he wants borings prior to building the house to see that
the land can support the house.
Upon a motion made by Mr. Rissin and seconded by Mr. Soule, the Board voted, unaniously
to take the matter under advisement. (Sullivan, Soule, Nickerson, Rissin, Vivenzio)
CONTINUED PUBLIC HEARINGS
Ronald A. Merino - Variance
164 Sutton Street
Mr. Nickerson, Clerk, read a letter from the applicant requesting to withdraw this
petition without prejudice so that they could address some of the Planning Board
questions and resubmit a clarified petition at a later date. The Board voted,
unanimously, to allow the petitioner to WITHDRAW WITHOUT PREJUDICE. (Sullivan,
Nickerson, Vivenzio, O'Connor and Rissin).
Page 3
Leona Morin
Special Permit
iO-C Forest St.
Legal notice read by Mr. Nickerson. Mr. John Clayton represented the petitioner.
The lot size is 3.44 acres with 650' of driveway, well set back from roadway. It
is wooded and buffers have been left to keep it that way. The proposed barn and
garage space would allow an always desired area to organize their personal and
family's belongings, and vehicle in a sheltered environment. Mr. Stocking, Town
Planner stated by letter that a dwelling with attached garage on 3.44 acres would
have qualified under the 300' bylaw. The petitioner believes that they are 300'
from the lot line. The height of the building would be 19' for storage of one
commercial vehicle. New plans were shown to the Board. Mr. Sullivan stated that
the major problem was the 300' question. Mr. Clayton said that there some wetlands
and some State property near and that the new building is located in the best place
on the lot and surrounded by lots of woodland. The petitioner only wants one
1-ton truck for his hobby. A two-car garage is attached to the house(two-story
colonial). Mr. Sullivan asked if anyone was in favor of this petition. A letter
from Mr. Nicetta was read to the Board.(see file). Mr. Sullivan asked if anyone
was opposed to this petition. Mr. Nicetta said that he had worked with the petitioner
and the only thing is that he feels the garage second-floor is unnecessary and he
does not see any reason for the added floor. He feels that it could be used as a
business at a later date. The petitioner is a carpenter and used to have a business,
but not in business for himself now but used to be. Mr. Nickerson asked what the
second floor would be used for and the petitioner stated storage. Mr. Sullivan read
the bylaw regarding commercial vehicles and feels that it is alright as long as
screening is provided, He has over three acres and the building would be a screen
in itself. Mr. Nickerson asked if this would end up as a business and the petitioner
said no. Mr. Nicetta stated that Tyler Monroe on Forest Street has about the same
thing and uses it to house his trucks. He said that we do not want any business in
this residential area and does not feel that the top floor should be allowed. Mr~
Rissin said that it would be 2,000 sq. ft. if the top is left on. The petitioner
stated that the floor space shown on the second floor is not carried to the eaves
and it is approximately 16½' upstairs and was done for aesthetic reasons as well as
storage.
Upon a motion made by Mr. Nickerson and seconded by Mr. Vivenzio, the Board voted,
unanimously, to take this matter under advisement.(Sullivan, Vivenzio, Nickerson,
Soule and O'Connor).
Maureen J. Joyce - Party Aggreived -
95 Main St.
Legal notice read by Mr. Nickerson, Clark. Mr. Joyce represented the petitioner
and stated that they do not feel that the Board or the Building Inspector have the
right to restrict the building owner from leasing or renting to whatever business
they want to, qualified business. The Building Inspector says that every time you
have a change in tenants, you have to come to the ZBA for a chznge in business.
This Board has the authority to interpret the bylaw and inform the Building Inspector
and he has to make it clear that a substantial detriment would be caused by this
change. Attorney Joyce feels that the businessman should have the right to decide
what business he leases his property to. Mr. Vivenzio asked the Building Inspector
how he handles from one permitted us to another permitted use. Mr. Nicetta said in
order to clarify himself that he said that the parking was detrimental on First St.
The building had been to the Board prior to this one. The enemy is the parking. He
stated that from one to same use and same area you do not need any Special Permit or
variance. Relief from the variance should be taken to the Board for the parking.
Is the Building Inspector making the decisions about what kinds of business can be
put in the building as long as the floor space is not changed? Mr. Soule said that
the parking is the main problem and he has full confidence in the Building Inspector
making the decision as to what a new business is and what is not. He feels that
having some guidelines is a good thing and he wants the downtown to stay nice.
Maureen J. Joyce - con'd
Page 4
Mr. Soule stressed that we should adopt the guidelines of the bylaw. Mr. Rissin
agrees with the Building Inspector. The plans show a Christmas Shop with retail
space on the first floor only and the upstairs was to be used for storage space.
The new plans were given to the Building Inspector and showed that upstairs used
for business and not storage. He feels that something like this shows that the
system works. The upstairs storage area will be treatment room area and will create
more parking problems. The original petition did not restrict the use of the
building, and now they want to use the second floor. Mr. Sullivan feels that the
original decision was for retail space. Mr. Nickerson said that he is sympathetic
about the dental office but at the same time the Building Inspector has to adhere
to the bylaw as he sees it for anyone that wants to change their business in the
downtown area. He feels that something should be done to clarify this bylaw.
Mr. Sullivan suggested that we petition the Planning Board to have something in the
new bylaws for Town Meeting in the coming year. The Board of Selectmen could put a
article in the Warrant to change this bylaws, but until that time the petitioner
should come to the ZBA until a change is made. Attorney Joyce stated that this
petition and meeting has been a good thing as far as the bylaw and what the interruption
of the bylaws are and that the Building Inspector should still make the decision and
come to the Board until the bylaws are changed. The Board and the petitioner had a
lengthy discussion of this bylaw and the pros and cons of its interpretation.
Upon a motion made by Mr. Nickerson and seconded by Mr. Rissin, the Board voted
to DENY the Party Aggreived as requested. The Board finds that the interpretation
by the Building Inspector and the petitioner differ because of the poor wording of
this particular bylaw and the Board will notify the Planning Board and the Board of
Selectmen of their concerns regarding this bylaw.(Sullivan, Nickerson, Soule, Rissin).
Eastwood(Windle)
Variance
(Remand from court)
138 High Street
Mr. Sullivan showed the letter from Attorney Stella, everyone of the Board members
had a copy and he asked if anyone had any questions on this letter. Mr. Nickerson
asked if the acting chairman had talked to Mr. Frizelle and he said yes and that
he had conferred with Mr. Serio regarding this matter, neither of these Board members
have any corrections for this letter, they agree fully with its contents.(Copy of
this revised decision is in the file).
Upon a motion made by Mr. Nickerson and seconded by Mr. Soule, the Board voted to
adopt a response and notify Attorney Joyce and Attorney Stella of there decision.
(Sullivan, Nickerson, Frizelle and Serio) Mr. Vivenzio voted against this.
DISCUSSION
Letter from Board to all Satallite Dish Installers read by Mr. Nickerson. This
was written by Mr. Rissin and read into the minutes for approval by Board. Mr. Soule
asked whether the Board should send out such a letter and start a presedent.
Upon a motion made by Mr. Rissin and seconded by Mr. Nickerson, the Board voted,
unanimously, to send this letter out for informational services so as to explain
our bylaw.(copy of letter in file)(Sullivan, Soule, Nickerson, O'Connor & Rissin).
L. & L. Vau~hn
Special Permit
439 Winter Street
Building Inspector, Robert Nicetta requested a discussion on this petition.regard-
ing the September 16th decision of our Board. New plans were shown to the Building
Inspector for a building permit and the first 'floor plans shows a 45' addition
with a bathroom on the first floor. Second floor shows a laundry-mud room, family
room, jaccuzi and kitchen. Talked about the size at the original meeting, 900 sq.ft.
Mr. Nicetta feels that the plans are not the same ones that were shown at the first
meeting.
Vaughn - continued Page 5
The Board voted unanimously to send a letter to Mr. Vaughn requesting his presence
at the regular meeting on November 1, 1988(see file).
DECISIONS
Leona Morin
Special Permit
10-C Forest St.
Upon a motion made by the Mr. Soule, with no second, for granting the Special Permit
with conditions, the Board decided to continue the hearing to the November 1, 1988
meeting, so that they can look at the site and perhaps the petitioner could submit
new plans, showing the side area scaled down and taking off the side area.
Douglas R. MacMiff
William S. MacLeod
Special Permit
163 Salem Street
Upon a motion made by Mr. Vivenzio and seconded by Mr. Soule, the Board voted,
unanimously, to DENY the request for reconsideration on the grounds that it is
improperty before this Board. Section 3 of the Zoning Rules and Regulations reads
as follows: "RECONSIDERATION: After the meeting had adjourned, there shall be no
reconsideration of a decision of the Board, except upon written request of the
applicant or a person aggreieved by the decision filed with the clerk not later than
ten (10) days after the filing of the decision with the Town Clerk. A motion for
reconsideration must be acted upon by those who participated in the hearing and
decision, prior to the expiration of the period provided for appeal to the Superior
Court by General Laws, Chapter 40A, Sec. 21. A motion to reconsider must be carried
by four (4) concurring votes, and, if carried, shall have the effect of restoring
the matter precisely as it stood before the decision was voted. A motion to amend
the decision or a motion to re-open the hearing will be in order."(Sullivan, Souls,
Nickerson, Vivenzio and O'Connor).
The meeting was adjourned at 10:30 p.m. and our next regular meeting will be held
on November 1, 1988 at 7:30 in the Selectmen's Meeting Room.
Taylor, ~Secretary
William Sullivan, Acting Chairman