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HomeMy WebLinkAbout1987-03-10REGULAR MEETING March 10, 1987 The Board of Appeals held its regular meeting on Tuesday evening, March 10, 1987 at 7:40 p.m. in the Selectmen's Meeting Room. The following members were present and voting: Mr. Frank Serio, Jr., Chairman, Mr. Alfred Frizelle, Vice-chairmn, Mr. Walter Soule, Mr. William Sullivan, Mr. Raymond Vivenzio and Ms. Anna O'Connor. PUBLIC HEARINGS - CONTINUED Alan D. Solomont, Trustee of Reb Sarah Realty Trust Special Permit -(Life care center) - Chestnut Street Alan D. Solomont, Trustee of Reb Sarah Realty Trust Special Permit -(Nursing Home) - Chestnut Street Chariman Frank Serio, Jr. read a letter from Attorneys Steinberg, Shaker, Lewis & James regarding both of these petitions, as follows: "As you know, this office represents the above-referenced petitioner. We hereby respectfully request that the public hearing be continued from March 10, 1987 until June 9, 1987. This request is based upon our be- lief that due to the pendency of legal actions concerning the Board's previous decision in this area, the best interests of the Town would be served by a continuance. We here- by agree to extend the time limits imposed by G. L. Chapter 40A, Section 15 relative to a decision in this matter until August 21, 1987, and waive any rights that we might other- wise have pursuant to said statue." Signed by Attorney John A. James, Jr., Attorney for Petitioner. Motion made by A. Frizelle and seconded by Mr. Soule to continue the two public hearing for Alan D. Solomont, Trustee of Reb Sarah Realty Trust, to the June 9, 1987 meeting. Vote was unanimous. Wilbur & Ann Burnham variance - 42 Buckingham Rd. Legal notice read by R. Vivenzio. Plans given to the Board by Mr. Burnham. He stated that when we applied for the building permit, it was under the inpression that as long as the new garage was not closer to the line than the old one, it was alright. Old plans were dated 1951. Pictures of old and new garage shown to the Board. Only one abutter objected to the new garage. Mr. Fraser, an abutter, stated that the new garage is a three-stall, two-story building and questions the use of the second floor. The petitioner claims that it will only be used for storage space, although it has a dormer in back with windows. Petitioner said parents furniture would be stored there and the windows were only for light. Garage is connected to the house by a breezeway. Copy of building permit put into file. Motion made by Mr. Frizelle and seconded by Mr. Vivenzio to take the matter under advisement. Vote unanimous. William & Pamela Buco - variance - Lots 42-49 Saville St. Legal notice read by R. Vivenzio. Coolidge Construction Co. represented the petitioner in this matter. They want to add a room and deck to the rear of the dwelling, and this addition would be too close to the lot line. Plans were drawn up by Cyr Engineering, and evidently a draftsman or engineer made a mistake in figures. If dwelling moved for- ward they would need a front setback variance. According to Coolidge Construction, Saville Street is very narrow, about 20' so they do not think it will be used much, house faces Chestnut Street. Coolidge Construction also stated that the area needs singular type footings. One abutter spoke in favor of this petition and no one was opposed. Mr. Frizelle has a tupographical map of the area. Page 2 Buco, continued Letter from Planning & Community Development read by Mr. Vivenzio as follows: "Since the applicant is requesting a side setback variance from a paper street, it has come to my attention that the street is not a public way but a nonexistent paper street. Should not in fact this application file for a frontage variance as well? Where is the legal frontage for ~his lot? Is the road going to be developed to become a public way. From looking at the plans submitted it appears as if a one lot subdivision may have to be filed to bring the road to standard. Lastly, the applicant has based the variance request on the slope of the lot. Is there a topography plan submitted?" Signed by Karen Nelson, Director. Pictures were shown to the Board of the area in question. Upon a motion made by Mr. Frizelle and seconded by Mr. Sullivan, the Board voted to take this matter under advisement. Vote was unanimous. Donald Samaha Party Aggrieved - 98 Beverly Street Legal notice read by Mr. Vivenzio. Mr. Samaha was represented by his son-in-law who lives on the other side of his duplex. Letter from Mr. Samaha read as follows: "On August 12, 1986 this board held a hearing regarding a request for a variance by John & Paul DiSalvo. The purpose of said variance was to allow the subdivision of a lot located at 98 Beverly St. The subdivision would have resulted in a duplex being con- structed in the rear of the existing single family dwelling. This variance was denied for various reasons 1.e., both lots would have failed to meet the zoning laws, safety would be a concern in case of fire or injury, neighborhood congestion and probable adverse affects to the value of the abutters' properties. A petition was filed by myself with the signatures and support of many of the area residents. This variance was denied and no appeal was filed on this denial. Subsequently John & Paul DiSalvo applied for and were granted a building permit to con- struct a four-stall garage and a single family dwelling which would be connected to the rear of the existing house. According to the Town Building Codes, this garage and house constitutes an addition since all the structures are connected. It is thisloophole in the code which has allowed the building of abberatlons such as the two homes located on Middlesex and Harold Streets which are connected by a thirty to fourty foot hallway. Many other lots in the neighborhood are large enough to accomodate additional housing in their backyards. We cannot allow this practice to become a norm in our neighborhood or our town. One further concern is the fact that when Mark DiSalvo advertised for his brothers on the rental of the existing house, the words "option to buy possible" were included in the ad. This prompts me to feel that they may be planning to eventually declare hardship and apply for a variance at a later date to allow them to subdivide the lot. This building permit should be denied for many of the same reasons the initial variance was turned down." Signed Donald Samaha, 106 Beverly St., North Andover, MA. 01845 Plans shown to Board, but the dwelling is not under construction as yet. Building Permit shown to Board also. Mr. Frizelle read the bylaw applying to this situation. Mr. F. Steward spoke in behalf of the petitioner and stated that abutters had signed a petition objecting to the construction of this addition. Letter from Planning & Community Development read as follows: "It is my understanding that this petition was before the Board of Appeals in August of this year to permit the division of property located at 91 Beverly Street to construct a duplex. Since the Board of Appeals denied the variance the applicant has received a building permit to con- struct a single family dwelling to be connected to an existing dwelling by mearns of two garages, thus the assumed two-family qualification. I must state my concern regarding the construction of two family dwellings ~ this nature, when in fact they have the appearance and in my mind the definition of two single family dwellings on one lot. My only remaining comment on this matter is that in your review a 'common sense and practical' reading of the Zoning Bylaw be applied. Samaha continued Page 3 I am enclosing a recent copy of a letter from Twon Counsel on a similar matter. I would expect that you may want to solicit additional review on Town Counsel's part to assist you in the decision process." Signed by Karen Nelson, Director. C. Foster stated that this is not the same thing as the other petition. Letter from Attorney Joyce read as follows: "RE: Petition of Donald Samaha, 98 Beverly Street, Dear Board Members: I represent Paul & John DiSalvo and the Andover Savings Bank on the above cited property. The DiSalvos were issued a building permit in October, 1986 and in reliance thereof, took title to the property and the Andover Savings Bank ex- tended substantial funds for the acquisition and construction as permitted. I bring to the Board's attention the substantial private interests in your consideration of this petition and request its denial for the following reasons: 1. Massachusetts General Laws, Chapter 40A, Section 15 provides "an appeal under Section 8 to a permit granting authority shall be taken within thirty (30) days from the date of the order or decision which is being appealed.." This appeal is untimely filed and this Board is without jurisdiction to hear the same. 2. The permit having issued and appeal therefrom being final, the Town of North Andover is "colaterally estopped" from revoking the same since parties have altered their position in reliance thereof. John & Paul DiSalvo and the Andover Savings Bank request the opportunity to further input in this matter at your hearing scheduled for March t0, 1987." Signed by Raleph R. Joyce. Further comments from C. Foster were that this is not a buildiBgcode question, it is a zoning question. This has been consistantly done in North Andover for many years. He cannot understand what is being appealed, the building permit cannot be appealed because it is over 30 days since the hearing. No reference is made to building permit in the legal notice. Karen Nelson said she had no comments to make at an open meeting. Ail department heads want what is best for the Town of North Andover, and realize that the bylaws need attention, but this can only be done by Town Meeting changes. Further discussion by Mr. Frizelle, Mr. Foster and Attorney Joyce. Petitioner asvised to present the problem to the Building Department, in writing, and when a reply is received, they can reapply. The building permit was issued on October 27, 1986 and the DiSalvos took ownership on December 15, 1986. Upon a motion made by Mr. A. Frizelle and seconded by Mr. Vivenzio, the Board voted to deny with out prejudice the petition because it was not properly before the board, Section procedurally. Vote was unanimous. 5.1 Fox Hill Road & North Leslie & Constance Sheppard - variance - side of Great Pond Rd. Legal notice read by Mr. Frizelle. Petitioner requests a variance of Section 7, Paragraph 7.1 and Table 2 of the Zoning bylaws so as to allow the continued existence of two seperate lots as shown on Plan of Land recorded in the North Essex Registry of Deeds as Plan No. 8322. Attorney J. Willis, Jr. represented the petitioner and stated that the property owned by the applicant was originally deisgned as a Form A lot adjacent to the Fox Hill Road Subdivision. Subsequently, rezoning of the area caused an inadvertent combination of the lot with adjacent land of the applicant. Ail other lots in the area were grandfathered in under the Subdivision Plan as legally existing lots while the lot in question, although an integral part of the original Subdivision Plan does not appear on the subdivision plan and is therefore technically not covered by the lock in provisions. Further, the shape and topography of the lot more readily lends it- self to the existence of a separate lot with structures thereon, than as an adjacent vacant side yard to the home owned by the applicant. The applicant suffers from e~onomic, Sheppard continued Page 4 as well as an aesthetic hardship in that the property cannot be properly utilized to its best advantage in a combined state as opposed to being separated and preserved as it was originally designed. Attorney Willis claims that the action of the Town took legal lot away from Mr. Sheppard when area was rezoned and the owner was not notified that the area was rezoned. The frontage for this lot would be on Fox Hill Road for any new building and would not need a variance. Letter from Karen Nelson read as follows: "Lot B is an undersized lot in an R2 District which requires 43,560 square feet of land. This property, including the land on Pleasant Street was not shown as part of the original subdivision plan and therefore is not pro- tected from zoning changes. Any parcel(s) in common ownership must be combined to meet the zoning in existent. There is no snfficent hardship shown in this application as written." No imput from audience in favor or opposition. Upon motion made by Mr. Frizelle and seconded by Mr. Soule, the Board voted to GRANT this petition as requested. The vote was as follows: Mr. Serio, Mr. Frizelle, Mr. Soule and Ms. O'Connor in favor, and Mr. Sullivan opposed. DECISIONS Combined Development Group III Trust - Special Permit - Lot 80(B1) Turnpike St. Upon a motion made by Mr. Frizelle and seconded by Mr. Soule, the Board voted to GRANT the Special Permit for the removal of fill on the entire site as set forth in the plans presented on March 10, 1987 subject to the following conditions: Strict adherence to Section 5 of the Zoning ByLaws as follows: Section 5, Paragraph 5.7 - Operation Standards; Paragraph 5.8 - Restoration Standards; Para: ,h 5.9 - Security Requirements. The petitioner shall post a Treasurer and shall pay all fees before a permit for The vote was unanimous. Copies of the above ByLaws were attached to the decision. Leon Belinsky(Marco Rubber) - variance - 334 Clark St. Letter dated 2/13/87 from Peter Samaris, A.I.A read as follows: "A Planning Board letter was read at the 2/10/87 meeting suggesting that Mr. Belinsky should attempt to purchase enough property from the i~ediate abutter, Miele Realty Trust, which would allow the site and project to be conforming in all respects. Mr. Samaris informed the Board that Mr. Belinski did, in fact, attempt just such a purchase during the early planning stages and his offer was not even considered by Miele Realty Trust. The Trust has no interest in selling as they need the land for their future planning. The petitioner is only asking for relief from side yard restrictions. We are prepared to comply fully with all remaining zoning regulations as defined in the Town of North Andover Zoning Code. The abutters are not opposing our proposed efforts and we feel that the finished project will enhance the area and benefit the Town of North Andover7 Upon a motion made by Mr. Frizelle and seconded by Mr. Vivenzio, the Board voted unanimously to GRANT the variance as requested. The Board finds that due to the shape of the lot in question that a substantial hard hip exists and that granting the variance will not adversely affect the neighborhood nor derogate from the intent and purpose of the Zoning ByLaw. Page 5 DECISION Wilbur & Ann Burnham - Variance - 42 Buckingham Road The petitioners presented evidence showing that they obtained a building permit to construct a garage on the premises. Prior to construction an old garage was removed. After construction it was discovered that one corner of the garage was located nine (9) inches over the side set back. Upon a motion made by Mr. Frizelle and seconded by Mr. Soule, the Board voted to GRANT the variance as requested. Mr. Serio, Mr. Frizelle, Mr. Soule and Mr. Vivenzio in favor. Mr. Sullivan abstained. William & Pamela Buco - Variance Lots 42 - 49 Saville St. The petitioner was represented by a representative of Coolidge Construction Company who stated that after they began constructing a dwelling for the petitioners they discovered that a proposed room would be ten (10) feet beyond the side setback. Upon a motion made by Mr. Sullivan and seconded by Mr. Vivenzio to grant the variance, the vote was as follows: In favor, Mr. Sullivan and Mr. Vivenzio, opposed, Mr. Frizelle, Mr. Soule and Mr. Serio. The motion did not carry and the variance was DENIED. The Board finds that the petitioner did not present sufficient evidence to show that there was a hardship as set forth in Section 10, Paragraph 10.4 of the Zoning ByLaw. The meeting was adjourned at 9:55 p.m. The next regular meeting is April 14, 1987.