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HomeMy WebLinkAbout1983-01-10January 10, 1983 Regular Meeting The BOARD OF APPEALS held a regular meeting on Monday evening, January 10, 1983 at 7:30 p.m. in the Town Office Meeting Room with the following members present and voting: Frank Serio, Jr., Chairman; Richard J. Trepanier, Esq,, Clerk; Augustine W. Nick- erson; Maurice S. Foulds; Walter F. Soule~ and Raymond A. Viven- zio, Esq. PUBLIC HEARINGS Hillner, Richard - Variance ~ Farnum Street Sitting; Serio, Trepanier, Nickerson, Soule, Foulds The Clerk read the legal notice. Atty. Domenic Scalise was present for the applicant and made the following points: - The Hillner's purchased the property in 1965. It has an acre of land. - It was built in 1965. - The wish to re-mortgage the property and a plot plan was re- quired by the bank. The plan revealed a set back violation which is a deck which is 6 feet shy of the requirement. No one spoke in favor or opposition to the petition. MOTION: by Mr. Foulds to take under advisement. SECOND: by Mr. Nickerson VOTE : Unanimous - motion carries. Ethun, Alan and Lever) William - Parties Aggrieved - Rock Road Sitting: Serio, Trepanier, Vivenzio, Soule, Foulds The Clerk read the legal notice. Mr. Alan Ethun spoke and made the following points: The premises in question are known as 9 Rock Road which is directly across the street from his home. - On September 8, 1982, Dr. Robert Franz purchased 9 Rock Road. January 10, 1983 -2- Regular Meeting Ethun and Lever - continued - On September 23, 1982, Dr. Franz opened his dental practice at 9 Rock Road. - On December 4, 1982, a home on Bridle Patch also owned by Dr. Franz was put on the market. - The home on Bridle Path was put on the market after Dr. Franz learned that approximately 80 peOple had signed petitions to the Building Inspector questioning the operation at 9 Rock Rd. - He has brought this to the attention of the Selectmen. It is questionable whether Dr. Franz is living on Rock Road or living on Bridle Path. - It does not appear that 9 Rock Road is occpuied. - There is a lot of activity at 9 Rock Road during the day but none at night or on weekends. - According to the Zoning By Law, the use of the premises for a home occupation must be secondary. - It is the feeling of the neighbors that the primary use of 9 Rock Road is the dental office and the secondary use is that they (the Franz's) spend some time there. - The l~ving room has been converted to a waiting room and the dining room has been converted to a dental office. - There is a large sign in the front yard and a sign on the front door which says "Office" - It appears that the entire home is being used as an office. - The cars are not parked in the garage. - The other complaint from the neighbors have is with parking and traffic. - His dog barks every time a car goes by and there are approximately 15 to 20 cars on an average day. - The patients are parking on both sides of the street and have parked on his property in the past. Also, people use his driveway to turn around. - He fears for the safety of his children riding their bicycles in the neighborhood. - There are also men sitting in cars and he doesn't know if they are waiting for patients or casin~ the neighborhood. January 10, 1983 -3- Regular Meeting Ethun and Lever - continued There are men outside 9 Rock Road at 3:00 p.m. when the children come home from school. There are also police cars bringing prisoners to the office. He believes they are from the Lawrence Correctional Institu- tion. If there is a fire, he questions whether a large emergency vehicle could get through. He also questioned whether or not more than 25% of the gross area of the dwelling was being used in connection with the dental practice. The bathroom facilities are being used so they must be in- cluded with the home occupation area. Also, the kitchen is used by the dentist and his staff so it must also be included. On display of goods and wares the neighbors can see people sitting in the waiting room and cars parked on the street. There has been a change in the nature of the neighborhood, and he disagrees with the Building Inspector's determination that the office is_a de~triment to the neighborhood. The Building Inspector has said that no building permit was issued for the additional sign. There is also rumor that Dr. Franz's son will join his practice and that means additional traffic. He could also sell the property to another doctor with a larger practice. Recently, the State of Massachusetts ruled that beauty shops are no longer allowed in a residential neighborhood and they generate the same type of traffic as this. He is asking the Board to eliminate the home occupation at 9 Rock Road. Mr. William Lever made the following points: He has researched the issue of how much traffic a dentist can handle in a day and the answer is 24 patients in an 8 hour day. Two dentists could see 4B patients and a hygenist could see about 12 people a day. This means as m~ny as 60 cars a day. January 10, 1983 -4~ Regular Meeting Ethun and Lever - continued Ed Giblin Paul Sullivan Robert Lyons Leo Kreialer William ~.~cMi 11 an Alberta Sullivan Bonnie Ethun Pat Noonan Anna Sullivan Mary Ruth Re~l~'y Nancy Lever Frannie Lyons Ken Checichi Gary Silva John Uri ch Doris Barrett Jim Karlovich Cora McMillan Richard Leppingwell Ellen Moll ca Rita Polcari The petitioners are objecting because they feel that Dr. Franz is violating what is allowed by the Zoning By Law. The following people spoke in support of the petition, which requests a review of a decision made by the,Building Inspector and appropriate action to correct, restrain, and disallow the use of a residence as a dental office in accordance with Section 4.122 (4) of the North Andover Zoning By Law for 9 Rock Road; 45 Rock Road 34 Berkeley Road 79 Rock Road 66 Rock Road 28 Rock Road 34 Berkeley Road 8 Rock Road 29 Rock Road 50 Rock Road 424 Andover Street 21 Rock Road 79 Rock Road 45 Tolland Road 37 Rock Road 58 Rock Road 12 Foss Road Berkeley Road 28 Rock Road 55 Tolland Road 190 Berkeley Road 65 Berkeley Road Letters from the following were read and placed on file: Building Inspector dated November 17, 1982 William & Doris Barrett dated January 10, 1953 Timothy and Pat Noonan dated January 6, 1983 Mrs. Elizabeth Elliot submitted a letter dated January 10, 1983 in which she objected to the petition. Mr. Charles Foster, Building Inspector, made the following points: - In November, 1982, several residents of the town submitted~a complaint to his office questioning the use of 9 Rock Road as a dental office. As required by law, Mr. Foster responded in writing on November 17, 1982. He determined that no zonin§ violation existed at 9 Rock Road. He made that decision based on the facts he had and his inter- pretation of the Zoning By Law. January 10, 1983 -5, Regular Meeting Ethun and Lever - continued People are within their rights to voice their objection. Also, the Building Inspector and the Board of Appeals do not have to be the final authorities. He has investigated the premises at 9 Rock Road. Originally, Dr. Franz questioned whether such a use was allowed and what conditions existed in the Zoning By Law. He took out a building permit to construct some partitions. The Building Inspector inspected them and found that they met all the conditions of the By Law. At first, Dr. Franz did not live on the premises and the Building Inspector informed him that he would have to live at 9 Rock Road in order to have the home occupation. He has inspected the premises at least six time, including today, and found no violation~and found it to be occupied. He has also inspected the property on Bridle Path which the doctor owns and has determined that it is unoccupied. At Bridle Path, there were no clothes, no food, no sheets on beds, and there was antifreeze in the bathroom. At 9 Rock Road, he has determined that approximately 19% of the gross area is being utilized for the home occupation. If the bathroom is included, it would still be under the 25% allowed, Even if he used the hall, he determined that the use was still within the 25%. He referred to page 38 of the Zoning By Law (Accessory Signs) and explained the sign by law to the audience. The Building Inspector determined that the doctor is within the provisions of the sign by law. In addition, no exterior changes have been made. Also, no one can guess whether or not his son will join him in his practice - that is not an issue for this public hearing. A number of years ago, the Zoning By Law was strengthened for home occupations and the number of people allowed was reduced from 5 to 3. Also, the use was reduced to 25%. Perhaps the fact that the occupation in question is located in a new subdivision is the problem. January 10, 19B3 -6~ Regular Meeting Ethen and Lever continued Attorney John Cronin, representing Dr, Franz, made the following points: Dr. Franz is within the Zoning By Law with the number of persons employed because he works alone and his wife helps him. In addition, the By Law states that one of the employees must be the owner of the home and Dr. Franz does, in fact, own the home. Dr. Franz also owns a home on Bridle Path, which is unoccupied~ unheated, and for sale. He presented a letter from the broke~ who is handing the property (The Howe Agency) which was read and placed on file. The sign in the front of the building is within the By Law and the sign on the door is merely for direction to the office. Dr. Franz has installed 3 doors to isolate the occupational use from the residential use which could explain why the neighbors do not see any lights on. There is no display of goods, nor does the doctor use the kitchen for his practice, He has a sink in his office. On a typical day, the doctor sees approximately 10 patients, He does not work on Wednesday and only works ½ day on Friday. It is not unusual for parents to bring their children. The property is close to the intersection of Andover Street and he should not be made the cause of all the increased traffic. Construction is still going on in the subdivision. Dr. Franz added the following: He has lived on the premises since October 7, 1982. - He sees no more than 50 patients per week and no more than one or two at a time. People come in to pay their bills in addition to having dental w~rk performed. On the matter of the police cars, he sees approximately one prisoner per month and they are accompanied by two guards. Dr. Franz's son was present and informed the Board and the audience that he does not intend to join his father's p~actice. January 10, 1983 -7- Regular Meeting Ethun and Lever - continued Following a lengthy discussion between the neighbors and the Board, the Building Inspector suggested that Dr. Franz could ask his patients to park in the driveway and not in the street. MOTION: by Mr. Vivenzio to take under advisement. SECOND: by Mr. Trepanier VOTE : Unanimous - motion carries. Hurrell, James - Variance Chickering Road Sitting: Serio, Trepanier, Vivenzio, Nickerson, Soule The Clerk read the legal notice. Atty. George Stella represented the petitioner and made the follow- ing points: The petitioner is requesting a variance in order to construct an addition as shown on the plan. The other variance is needed because of the fact that as a B-4 district, the existing building does not comply with the area and frontage requirements. The proposed addition, as indicated on the plan, would be 15' from the sideline and will blend in with the existing building which is and has been 15' from the back line. - No zoning change is proposed its present zoning allows for a professional office building. The petitioner wishes to continue the present use. The petitioner does not propose to open up Franklin Street, which is deadended. The former Board of Appeals (1973) said that one of the require- ments was that Franklin Street remain a deadend. The abutter (Arsenault) has granted permission to Mr. Hurrell to use ½ of the paper street for parking. The hardship for Mr. Hurrell is that the two existing tenants are in need of more office spmce and if he cannot construct the addition, they will look elsewhere for space. January 10, 1983 -8- Regular Meeting Hurrell - continued Mr. Joseph Lagrasse, architect~,~ was a'lso present and made the following points: - The addition is a small one (approximately 1,500 s.f.) - It is no closer to the lot line than the present building. It will be no higher than the existing building. Mr. Hurrell, the petitioner, was present and added the following: - The stairwell will not be as shown on the plan. - The stairs will only be used as an emergency exit. - Parking will be in accordance with the Zoning By Law. Speaking in favor of the petition was Donald Arsenault,an abutter. The following letters were placed on file: Building Inspector, dated January 10, 1983; and Stanley and Julius Korycki, dated January 10, 1983. In response to the letter from the Korycki's, Mr. Hurrell made the following points: He purchased the property in 1970 and put in the section of the paper street in 1971. The parcel was zoned B-4 under the Master Plan zoning in 1972. Prior to this, Franklin Street was a hay field. This parcel was zoned prior to the street being put into existence. All the surrounding properties are zoned for business; but he also also abuts a residential zone (R-4). He has never made any changes to the land abutting the R-4 zone. He has added trees in the past along the residential area and intends to add more. Arrangements have been made for snow removal. On the drainage, he has spent over $10,000 in the ground on his property. Because of the water coming down Franklin Street, he has tied his property into the sewerage and has tried to solve the water problem in the entire area at his own expense. January 10, 1983 -9- Regular Meeting Hurrell - continued In the letter from the Korychi's, they talked about side line and rear line setbacks, for which variances are being requested. He submitted a picture from his building looking at Mr. Kor- ycki's property and stated it is an eyesore and the building is right on the lot line. Mr. Lagrasse concluded the discussion by stating that the drainage plans are ample to take care of the water. MOTION: SECOND: VOTE : by Mr. Nickerson to take the matter under advisement. by Mr. Vivenzio Unanimous - motion carries. Bradley, James - Party Aggrieved- Concord, Wayne, and Osgood Sts. Sitting: Serio, Trepanier, Nickerson, Soule, Vivenzio The Clerk read the legal notice. Atty. Michael Gorham was present for the applicant and made the following points: It was initially alleged that a required plan had not been filed w~th the Board of Appeals, when in fact it was. The petitioner feels that some misstatments occured in She applications for permits. He referred to the decision of the Board of Appeals for Joseph Saalfrank. (Petition No. 27-'81). The variance was never perfected because it was never recorded at the Registry of Deeds. The desire of the Board of Appeals was to combine two lots of land, creating a 25,000 s.f. lot, and for the applicant to submit a revised plan showing the lot. Neither of the lots on Osgood Street met the requirements of the Zoning By Law, so with the plan not being recorded, they still do not comply. Lot A-1 contains 18,000 + s.f, and complies with minimum require- ments in an R-4 district and satisfies the graning of Form A approval. A plan was submitted to the Planning Board showing the creation of the two lots and the two on Osgood Street, which do not meet the requirements of the Zoning By Law. January 10, 1983 -10- Regular Meeting Bradley - continued The principal point on which this petition is based is that a misrepresentation was made to the Planning Board on Lot C-1. Wayne Street does not exist as a private way nor as a public way and it is improper to use f~ontage on Wayne Street. The definition states that it must be a public way or a private way open to the general public or on a subdivision plan approved by the Planning Board. The original subdivision was drawn in 1908. Wayne Street was never laid out as a public way and never used as a street. It is a driveway to the town garage. It is clear that it is used only for access to the garage and is a deadend street or driveway. The Building Inspector issued a permit based on his belief that it was for the construction on any lot without regard to access. It appears clear that the owner is building a structure inten- ding to use Concord Street as a means of access to the house. The frontage on Concord Street is 50' or less. The Board of Appeals made this an issue when the variance was granted. The Planning Board was misled in that they were led to believe that the Board of Appeals had approved the creation of Lot C-1 and that Wayne Street should not be considered a way for frontage. The Board of Appeals should order the revocation of the building permit. Speaking in favor of the petition were: Richard Charest, Alfred and Edith Charest, Daniel Dufault, Denise Dufault, William Enright, and Claire Bradley.~ Speaking in opposition to the petition was Building Inspector Charles Foster, who made the following points~ In 1957, the lots where Mr. Saalfrank's garage now exists at the corner of Wayne and Osgood was granted a variance (Lot C-1) to enlarge the building on the premises. Some of the buildings were torn down. The owner of the property at that time (A & A Concrete) went to Town Meeting and asked that the parcel be zoned for General Business (1965). January 10, 1983 -11- Regular Meeting Bradley - continued Somewhere along the line, Mr. Saalfrank purchased the p~operty, as well as the adjoining land. He purchased a lot on Osgood St. (Lot D) and he purchased a parcel of land that runs between Wayne St. to Concord Street (everything except the corner lot). He came to the Board of Appeals asking that the last parcel be divided into two lots, which the Board refused. Mr. Saalfrank did not wish to utilize the plan so he went to the Planning Board and received Form A approval. The Planning Board felt that Wayne Street could handle the traffic. Both Lots A and A-1 have more than the required area of 12,500 s.f. and the frontage is on Wayne and Concord Streets. What this (Form A) plan does is add footage to an undersized G-B lot. Regardless of what the Planning Board does, the final decision to issue a building permit is made by the Building Inspector. The Planning Board plan is stamped that the endorsement is not a determination as to conformance with zoning regulations. Knowing that the land in question had been before the Board of Appeals, he was hesitant to issue a building permit and took the material to Town Counsel who agreed that a building permit could be issued. He issued the permit because: the land 'shows frontage for the land being divided that meets the requirements of the ZBL; and it also shows the required area. There have been many permits issued on paper streets from two town counsels, who both agreed that a person has a right to use a street for entry if it is on record by plan and on the Assessor's maps. There is nothing the petitioner could have done to eliminate the non-conformance on Osgood St. The building permit and the land being divided did not have anything to do with that particular lot. January 10, 1983 -12- Regular Meeting Bradley - continued - There is nothing in the Zoning By Law which requires a person to use the frontage as access to his building. Attorney ganiel P. Kiley, Jr., was present for BY Development, who purchased Lot A-l, and he made the following points: At the time the lot was purchased (November), the Planning Board's Form A plan was on record at the Registry of Deeds. The conforming of the lots has nothing to do with the con- struction of Lot A-1. The purchase was made in good faith and his client is an innocent purchaser. The Planning Board looked at it as a buildable lot. The Board of Appeals' variance is nullified due to the fact that it is not on record. The petitioner in this case should have notified the Building Inspector of the violation. Then the Building Inspector has 14 days to respond in writing after which the petitioner can come to the Board of Appeals, so this procedure is incorrect. Atty. Gorham argued that: By recording the Form A plan, the lots exist by virtue of a variance. Lot C-1 did not exist except for the notation on the plan. In further discussion, Mr. Default, the owner of Lot A-2, raised some questions regarding his frontage and an easement. The Board felt that Mr. Default has his required 100 feet of frontage. Mr. James Bradley, the petitioner, made the following points: The same group of people were here in 1981 when Mr. Saalfrank requested the variances. - The Board of Appeals felt that the abutters were correct and that safety was an issue. - The Board ruled that no building should be on Concord Street. MOTION: by Mr. Nicerson to take the matter under advisement. SECOND: by Mr. Trepanier VOTE : Unanimous - motion carries. January 10, 1983 -13- Regular Meeting Rollins Cablevision P~rty A§grieved - Mills Hill Sitting - Serio, Trepanier, Nickerson, Vivenzio, Soule The Clerk read the legal notice. Atty. Richard Asoian was present for the applicant and made the following points: The premises are located off 300 Chestnut Street. Access to the premises are along the side and along the dotted line as shown on the plan. The premises are owned by Jack Carter and Ray Alger and the property is subject to lease by Rollins Cablevision. Rollins was granted a license from the town of Andover to install cable in Andover. Construction is 90% complete as far as laying the cable. One of the last functions is to connect the cable system to an end site (an antenna site). Rollins approached the Building Inspector some time ago and asked for the use of the facility on Mills Hill. The Building Insepctor determined that the use of the site was not proper. The history of the site is simi)ar to other sites before the Board (Boston Hill). The tower is existing and was built in 1958 by MIT and MITA. A variance granted to MIT in 1958 indicated that the property was to be used for a research facility. The zoning was changed in 1972. Prior to 1972, towers were allowed in North Andover. The variance allowed additional height. Rollins did not intend to make any structural changes to the structure. Rather, as allowed by Section 9.1, the applicant proposes to continue the use of the tower in the same manner as it was used by MIT (reception and distribution of electronic signals). The applicant's proposed use was suspended with the Building Inspector's correspondence. The Building Inspector's basis was that the applicant is a commercial entity for profit and MIT was~not. The basis for this petition is that the Building Inspector is incorrect. January 10, 1983 -14- Regular Meeting Rollins - continued - The applicant should be permitted to continue to utilize the tower site as a lawfully non-conforming use. On Boston Hill, the Board noted that there was not a signi- ficant change and, therefore, allowed the Special Permit. He is asking for the same consideration for this site. Mr. Larry Fitzsimmons from Rollins made the following points: On the existing tower they (Rollins) will add 14 antennas and 3 dishes as well as a portable buildilng. ~ The bottom dishes are transmitting dishes from this site to Dracut, No. Reading and Middleton. Speaking in favor of the petition were Mr. Edward Phelan, Chairman of the Board of Assessors and Mr. Gilbert Rea, an abutter, Atty. Asoian added that Town Counsel has given verbal approval of this petition. He stated that they (Rollins) could use the existing variance. He also presented a court case (Mass. Judicial Court (Revere). Read into the record were letters from Mr. Greenwood, who still has an interest in the abutting land, and a letter from the Building Inspector to Atty. Asoian, dated 12/3/82. Speaking in opposition to the petition were the Building Inspector, Mr. Charles Foster, Atty. Howard Berger, representing the owners of Boston Hill, and Atty. George Stella, representing Mr. Henry Fink. Atty. Berger stated that he believes an attempt is being made to by-pass the authority of the Board of Appeals. MOTION: by ~Ir. Nickerson to take the matter under advisement. SECOND: by llr. Trepanier VOTE : Unanimous - motion carries. Rollins Cablevision Special Permit Mills Hill The clerk read the legal notice. Sitting: Serio, Trepanier, Nickerson, Foulds, Vivemzio Atty. Richard Asoian, present for Rollins, made the following points: He asked that this petition include Mr. Carter and Mr. Agler as well as Mr. Greenwood as petitioner~ in the 1958 decision. January 10, 1983 -15- Regular Meeting Roll~ns - continued The change on the site, resulting in the request for a Special Permit, is that the building on the bottom of the plan includes a larger building which will accomodate three antenna dishes. - They are intended to be satellite receiving dishes; they are 10 feet tall. - The are proposing to replace the existing building with this. - Due to screening, they will not be visible outside the site. - This is a minimum expansion for the use of the property. - In addition, another reason for the Special Permit is, if the Board finds in their favor on the previous petition, they would require a Special Permit for the use as proposed in the petition before the Board. Building Inspector Charles Foster noted that the additional antennas should be included in this petition. No one spoke in favor of the petition. Atty. Howard Berger and Atty. George Stella spoke in opposition on behalf of Benjamin Farnum and Henry ?ink, respectively. MOTION: by Mr. Foulds to take the matter under advisement. SECOND~ by Mr. Nickerson VOTE : Unanimous - motion carries. ~ergi, Salvatore - Variance - Mifflin Drive The Clerk read the legal notice. Sitting: Serio, Trepanier, Nickerson, Fould$, Vivenzio Atty. George Stella was present for Mr. Sergi and made the following points: - Because of financing with the bank, a variance is needed. There is a violation on the plot plan. - The applicant needs a total of 8/10 of a foot for the front and 5.8 feet on the side line. ~ The house was constructed in 1960 by Mr. Sergi's father. - In addition to the setbacks, an area variance is requested. January 10~ 1983 -16- Regular Meeting ~er~i MOTION: SECOND: VOTE : continued by Mr. Vivenzio to grant the variance as requested. by Mr. Trepanier Unanimous - motion carries. DECISIONS The Board will call a special meeting to render the decisions for tonight's public hearings due to the lateness of the hour. REVISED PLANS - Forgetta - Ashland Street Mr. and Mrs. Forgetta submitted revised plans. However, the five members who sat at the public heari'ng are not all present tonight. The Board then set a special meeting for Tuesday evening, Jan- uary 18, 1983 at 7:30 p.m. DECISION Hillner - Variance - Farnum Street MOTION: by Mr. Trepanier to grant the variance as reque.~ted. SECOND: by Mr. Soule VOTE : Unanimous - motion carries The meeting adjourned at 12:45 a.m. Secretary Chai~an C/