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HomeMy WebLinkAbout1985-01-14r January 14, 1985 Recjular Heeting The ~OA~D OF APPEALS held a regular monthly meeting on Monday evening, January 14, 1985 at 7:30 p.m. in the Town Office Meeting Room with the following members present and voting: Frank Serio, Jr., Chairman; Alfred E. Frizelle, Esq,, Vice Chairman; William J. Sullivan; and Associate Members Walter F. Soule and Maurice S. Foulds. PUBLIC HEARINGS Goodrich, Robert and Monique - Party i~]~rieved - 100 Flagship Dr ive Member Foulds read the legal notice. A letter from the Building Inspector dated January 4, 1985 requesting a continuance of the public hearing for one month was read and placed on file. Attorney Nicholas DeNitto, representing the petitioners, requested that the hearing be held due to the nature of the petition. He stated that the request is for the revocation of a building permit and that construction will continue to the detriment of the petitioners. The Board agreed to proceed with the public hearing. Attorney DiNitto stated the following: The presumption in 1972 was that all the R-2 land would be included in a 300 foot buffer. What happened was that wedge-like portions of the Goodrich's land and the Condon's land was arbitrarily bisected. The result is a pie shaped piece of land zoned industrial. The Zoning By Law, which deals with setbacks, provides for an additional 100 foot setback from the zoning line and not the property line. The position of the Building Inspector was to allow the construction of an addition 50 feet from the district line and not the property line. The result is a building that was constructed closer than it should have been. Everyone knows that' the intent of the Master Plan and buffer zone was to protect the integrity of residential zones. The town did not intend to carve out a piece of land and make it industrial. - The Planning Board has a right to make decisions with regard to those kinds of things. They said in October of 1980 that adjacent to residential districts, an additional 50 feet shall be required and that the 100 foot buffer would be from the property line. They were trying to correct the situation. The definitive plan of the Willows Industrial Park Extension submitted by Mr. Regan and Mr. Grasso was to be recorded with the conditions or the conditions should have been referenced. In reviewing the matter in 1982 it was discovered that the definitive plan was not endorsed and a copy of the conditions were recorded on July 19, 1982. There was an appeal made before this Board and this Board denied the petition of Mr. and Mrs. Condon because the plan was not endorsed and the conditions were not recorded. If there was any doubt then about the conditions, they know now with the construction of the addition. - The addition will be within 50 feet of the Goodrich's. To echo the same "bad" decision the second time after the document was recorded is ludicrous~ The Planning Board rendered a decision but did not endorse the plan and there were no conditions recorded anywhere. The intent of this buffer was to avoid what we are arguing about. Member Frizelle stated that the only difference between this petition and the 1982 petition of the Condon's is the fact that the conditions of the Planning Board are now on record. Chairman Serio asked the petitioners why they never re-zoned the wedge of land to residential to avoid this type of conflict. They did not respond. Mrs. Goodrich stated that they were assured by the Planning Board in 1980 that there would be a 100 foot setback. Mr. Charles Nigrelli, owner of the building in question located at 100 Flagship Drive, added that the addition is almost complete. No one spoke in favor of the petition. Speaking in opposition was Attorney Joseph Fitzgibbons, repre- senting Mr. Nigrelli. He stated: With respect to this petition and condition ~7, because it was not recorded prior to his client taking title to the property, it does not apply to his property. This was decided in 1982 and the judge decided that condition #7 does not apply to this lot. - 100 Flagship Drive is not adjacent to a residential district. r Even if condition %7 was recorded, it still would not apply. We have been through this and we thought it was over. The judge relied on the fact that even if condition %7 had been recorded, it still would not have applied because the Planning Board overstepped their authority. In response to a question from the Board, Attorney Fitzgibbons reported that Mr. Robert Regan recorded the conditions. Attorney DeNitto added the following: With regard to the comment about this being over, and with regard to the Zoning By Law, once a party has notice of a certain restriction, they must comply. Member Frizelle asked Attorney DeNitto how the Board could change its decision from 1982 since even the judge backed it up. Attoreny DeNitto responded that if you don't have all the facts when you make a decision today, but you have them tomorrow, you could change your decision. He added that the Planning Board recognized the problem and tried to rectify it. The Building Inspector is required to comply. MOTION: by Mr. Frizelle to continue the public hearing until Tuesday, January 22, 1985 at 7:30 p.m. for the purpose of hearing the Building Inspector's position on the petition. SECOND: by Mr. Sullivan VOTE : Unanimous - motion carries LaPerriere, Paul and Linda - S~e~ial Permit and Variance - Old Farm Road Member Foulds read the legal notice. Mr. Laperriere made the following presentation: The petition makes two requests. One is the approval of an "in-law apartment" and the second is to allow a variance of four feet to construct it. - The primary request is the approval of the in-law apartment. His mother-in-law is co-owner of the property. She is 54 years old and has been a widow for 12 years. Her only other family besides them is a son who lives in this area, so she would like to remain in this area. The reason for the variance request is that he wants to build the apartment within setback requirement. - There are 34 houses occupied in the development and 19 have additions to the main structures that appear to be garage styled. His would look similar. - There is another in law apartment in the subdivision so he would not be setting a precedent. - He has spoken to his neighbors. Speaking in favor of the petition was Mr. Norman %qheeler, owner of Lot 2. No opposition was voiced. Mr. Jack Pearl, own~ of~Lot 35,~ asked who will measure. Member Frizelle responded that the Building Inspector will have to do it. He will rely on a certified plot plan. MOTION: by Mr. Frizelle to take the petition under advisement. SECOND: by Mr. Fould$ VOTE : Unanimous - motion carries Continental Cablevision - S~ec.%al Permit - Johnson Street Member Foulds read the legal notice. Attorney Michael Morris, representing Continental, made the following presentation: - The property is also known as "Clay Pitt Hill". - He stated that Mr. Craig Tomchik of Continental Cablevision was also present to answer any questions. - They are requesting a Special Permit to erect an 8 foot square concrete pad and a receiver made of fiberglass. - This property was purchased and the equipment erected for one purpose - to receive T.V. transmissions/signals. - He wants to separate the equipment on this site from equipment on other locations that have come before this Board. - There are no emissions of any kind coming from the proposed facility. It will be used for receiving signals only. - It is a legal non-conforming use. It was built by virtue of a building permit. - With regard to the previous appeal made in 1968, it was'made by a previous owner and has nothing to do with this petition. - They now wish to enlarge the use, which is allowed under the Zoning By Law, Section 9. At the present time, they have one identical size structure with a 10' x 14' building and a 220' high tower. Physically, the proposed addition is for less than an aggregate of 25% of the present facility. Also, the initial investment was made 13 years ago. The proposed addition will not lenghthen the life of the tower. Such change will be permitted only on the same lot occupied by the non-conforming use on the day it became non-conforming. - The dish will be on the same lot that contains the non- conforming use. - The site is only accessible by 4-wheel drive, so the site is an appropriate one. The structure cannot be seen from Johnson Street or from any house bordering it. This dish will greatly expand the service to North Andover subscribers. Ail North Andover subscribers will receive additional channels at no extra charge. There will also be future services for which subscribers will be charged. Adequate and appropriate facilities will be provided for the proper operation - the foundation is poured and the dish is there. The section of the By Law about vehicles and pedestrians does not apply since the site is so unaccessible. The special Permit Granting Authority must make a determina- tion that the use is in harmony and he submits that this is true. - It will be enclosed with a chain link fence. No one spoke in favor of the petition. A letter of support from Mr. John Robinson, dated 1/10/85, was read and placed on file. A letter from the Building Inspector, dated 1/4/85, was read and placed on file. A letter of opposition from Mrs. Helen Kellner, dated 1/2/85, was read and placed on file. She stated that she has a problem with interference. Mr. Edward Phelan stated that he lives near Mrs. Kellner and he does not have a problem with interference. Speaking in opposition was Mr. John Carter, 300 Chestnut Street. He stated: - That he lost the chain of reasoning about the economic life. Attorney Morris responded that the dish is useless without the tower. If you take the tower away, the proposed use is null. Mr. Tomchik added: It would be unfeasible to have a tower of 280 feet. Now, with satellite, things have changed. They would not need the height. Mr. Carter asked Chairman Serio for a definition regarding the specific requirements on the 25% additional usage. Member Frizelle responded that the Board will take that into con- sideration when they render a decision. Mr. Henry Fink asked if the tower were not there, could they use the site. He also asked if the tower was to be used for receiving only. Mr. Tomchik responded that the tower will be used for receiving only and that the signals come in through the tower. Mr. Fink then asked about a pad dish and how much of the work is done so far. He presented pictures of the site. Mr. Tomchik answered that no construction has begun. Mr. Warren Rea asked if it will be necessary to remove any vege- tation and Mr. Tomchik said that it will not be. Mr. Carter asked if the granting of the Special Permit is con- tingent upon the servicing of individual members of the Board. Chairman Serio repsonded that it is not. Mr. Tomchik added that maintenance will be minimal - probably once a week and it will be inspected 4 to 5 times a month. Member Soule asked Mr. Edward Phelan, Chairman of the Board of Assessors if the approval of the Special Permit would increase the value of the property and Mr. Phelan said it would. Mr. Rea asked from what direction the Signals will come with respect to the abutting property and Mr. Tomchik said they will be way above it - the elevation is above the equator. Mr. Carter asked if the Board intends to make a determination as to whether or not the pad has been poured, and if not, why not. Chairman Serio responded that they have not had a chance to dis- cuss it. MOTION: by Mr. Frizelle to take the petition under advisement. SECOND: by Mr. Soule VOTE : Unanimous - motion carries. Jo~ce, Maureen - Special Permit and Variance - Main Street Member Foulds read the legal notice. A letter from the Fire Chief, dated 1/14/85, was read and placed on file. Attorney James Hyde, representing the petitioner, made the foll- owing presentation= - The purpose of the petition is to allow the addition to a building and add one retail shop. - The property is located at 95 Main Street. - It is important to point out that the Fire Chief had some concerns about getting apparatus and that the petitioner has agreed to modify the plan by reducing the proposed addition by three feet. - The petitioner also agrees to all the conditions outlined in the Fire Chief's letter. - The Building Inspector has determined that the parking is adequate since it is close to a municipal parking lot, thereby reducing the requirement by 50%. - The structure is a non-conforming use because it does not comply with setback requirements. - The petitioner is attempting to construct an addition to the back of the building. The building has been remodeled and is attractive. The addition would conform aesthetically to the existing structure. - There would be no major traffic problems. - The variance is needed since the addition will not meet the rear setback requirement. - The Special Permit is for the side setback. - The use will be retail on the first floor and storage on the second floor. - There is an existing 12 foot easement and it will be 15 feet when the plan is revised. No one spoke in favor or opposition to the petition. MOTION: by Mr. Frizelle to take the petition under advisement. SECOND= by Mr. Foulds VOTE : Unanimous - motion carries DECISIONS LaPerriere - Special Permit and Variance - Old Farm ~ad MOTION: by Mr. Frizelle to grant the variance as requested on the side lot line for four feet, based upon the fact that the conditions of Section 10.4 of the Zoning By Law have been satisfied. Specifically, that the location of the struc- ture on the property makes the variance necessary and that a hardship has been found in that the proposed addition cannot be constructed in any other location as it relates to the zoning district and grant the Special Permit for the family suite, subject to the following conditions and based on the fact that the Board finds that Section 10.31 of the Zoning By Law as it relates to the site have been satisfied. Specifically, the Board finds that no nuisance or serious hazard to vehicles or pedestrians will be created and that the granting of the Special Permit is in harmony with the general intent and purpose of the Zoning By Law. 1. The family suite is solely for occupancy by Sally Lubin, mother of Linda LaPerriere. 2. The Special Permit shall expire at the time Sally Lubin ceases to occupy the family suite. 3. The Special Permit shall expire at the time the premises are conveyed to any person, partnership, trust or corporation. The applicant, by acceptance of the Certificate of Occupancy issued pursuant to the Special Permit, grants to the Building Inspector or his lawful designee the right to inspect the premises. SECOND: by Mr. Foulds VOTE : Unanimous - motion carries. Continental Cablevision - Special Permit - Johnson Street The Board will visit the site and render a decision at a later meeting. Joyce, Maureen - Special Permit and Variance - Main Street The Board will visit the site and render a decision at a later meeting. 01q~R BUSII~SS Re-Organization The Board will re-organize when a full Board is present. Hinutes - 11/19/84~ 12/6/84~ 12/10/84~ 5/21/84 (revised) MOTION: by Mr. Foulds to accept as written SECOND: by Mr. Soule VOTE : Unanimous - motion carries Route !1~ Traf, fic Stu~ Chairman Serio reported that he and Member Soule attended a meeting. Mr. Soule prepared a letter to the Board of Selectmen from the Board of Appeals. Zonin~ Violation - Lot 27 French Farm Road MOTION: by Mr. Frizelle to request the Building Inspector to investigate a possible zoning violation at Lot 27, French Farm Road, being an in law apartment. SECOND~ by Mr. Sullivan VOTE : Unanimous - motion carries The meeting adjourned at 10:30 p.m. ~o, Jr-~,~ airman Secretary