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HomeMy WebLinkAboutMiscellaneous - Butcher Boy-Photos (2)yip Sl$6 ' z , m vci *• S�p� pp�d�0�� P k° zzzoo �Ja�9� o0 z� zzz��Zo o �O 0 0 0 0 0 6 0 0\A, IAO �oS09 �ad o p rn 3� N C z o cn cr c,� lb 1c ll O O 722, 73O FD �y O aF �I 41. < `�_ _'.. C= `'m o Q) tiD rq E60E OF PA tZi (A y un C) EXIS77NG ^� � c ONE STORY m �' y z BUILDING y o ��Zd 0� cn r Z D ©y \ 6g rn 237.D' z °p"s, o app cn '� L C o 00'U r - IS o 6000 y c QOM U)tnn�jy� �r d o� 0 t a r �mZ WS_ �► c `- pzo z� f� 7C ► Z+ CO C0 r wDm(70 < o O r C \ S113S � � C) 4 y <b o o ZZ z n O O �o 7304z4 c� ~0n��b�'°1rii o W O 2 _+ I O6 L �O 2� � < N am . Ki �o�ozo v)�oro=Ll En / ZO O C r O� O n1 "I 0 0 loo --iO y Rl �, �, r v�',�oba z� n, z n, r', O z Z 50 TS- N o o -*< II �7tzg Z tt��� a ozpyZo Sz E P4 V, �t -73 S< rzD , (n :10 rl oy c1 El M � b Nay �_�� oeZ O r^ b o ::do C o�� tij Zj o�y� N3 r Pa zt o�W October 6, 2008 Thomas Yameen Butcher Boy Market 1077 Osgood Street North Andover, MA 01845 c NORTN O`.1tLlO 16 q�0 OL O t6 O COCMCaw 9 �. M{MNCM PUBLIC HEALTH DEPARTMENT Community Development Division Re: Request for holiday use of refrigerated trailers Dear Mr. Yameen, The Health Department has received your verbal request regarding the use of temporary refrigerated trailers for the upcoming holiday season. Although the concept of your request is understood, the conversations held between you and I cannot be formerly responded to without a written detailed request. This office will be able to provide you with a formal answer, with the submission of proper documentation and explanations. The storage issues faced by Butcher Boy are well documented and understood by the Board of Health and do not need extensive explanation. In April of 2008, the Board of Health accepted a proposal to install an outdoor refrigeration unit to alleviate ongoing storage space inadequacies at Butcher Boy Market. The approvals given were to be implemented and utilized so that trailers would not be necessary. In July, the Planning Board also approved a similar proposal in a decision dated July 2, 2008. With the approval, the Board of Health expected the trailer issue to be one of the past, however if you would like to pursue the issue of once again utilizing trailers ,for the storage of turkeys please submit the following. 1) A document detailing the status of the installation of the refrigeration and the reason this approved measure is not completed to date. Proof by contract, building permit etc. that show intent to build by a certain future date 2) Plans showing any items detailed in the cover letter 3) Describe plans to provide protection of the turkeys while in the trailer 4) A description of the vehicles proposed to be utilized 5) Dates, proposed locations and other pertinent information 1600 Osgood Street, North Andover, Massachusetts 01845 Phone 978.688.9540 fax 978.688.8476 Web www.townofnorthandover.com thank you for your anticipated cooperation in this matter. Sincerely, Susan Sawyer, R HS/RS Public Health Director Cc Gerald Brown, Inspector of Building Judy Tymon, Planning Director Board of Health members 1600 Osgood Street, North Andover, Massachusetts 01845 Phone 978.688.9540 fax 978.688.8476 Web www.townofnorthandover.com •r. x 4 NOHTN .y >~ o F (978) 688-9535 F (978) 688-9542 Town of North Ando ver Office of the Pla�g Department CIM :Developient and 5ervkes Dk�' . � Osgood Landing 160ip. Any appeal shall be filed within (20) days after the date of filing this notice in the office -of the Town Clerk. Peilfion of: 0 Osgood Sueet ^R ' North Andover, Massac€msetts rn a, ri NOTICE OF DECISION ttlag. Con/Com Fire Chief Town Clerk Surrounding Towns S2> 2E X" LBA" .. Health Police Chief DPW/Engineers Date of Hearing: 6/17/08 &.7/1108 Date of Decision: 7/2/2008 Angus Realty Trust, 1077 Osgood' Street, North Andover, MA 01845 Premises Affected: 1077 Osgood Sheet, North Andover, MA 03845, within the General Business Zoning District, Assessors Map 35, Lot 27. Referring to the above petition for a Watershed Special Permit from the Andover of the Forth ndover Toning Bylaw, Section 4.1;6L;)c. So as to allow to install two dry good storage containers and construction of a refrigerated storage cooler within a portion of the 250' non -disturbance buffer zone located within the G B zoning district. After a public hearing given on the above date, the Planning Board voted to APPROVE a WATERSHED SPECIAL PERMrr for the Watershed Protection District, based upon the following conditions: Curt Bellavance, Director John Simons, Chairman Alberto Angles, Vice Chaffs= Jennifer Kusek, Clerk Timothy Seibert, regular member BOARD OF APPEALS 688-9541 BUnAII4G 69&9545 CON 6MVAnON ""530 HEALTH 68&9540 PLANNNG 658-9535 tAORTH q 3? 1b f. - OL O m 'O. COCMICMtWKM . 7� PUBLIC HEALTH DEPARTMENT (ommunity Development Division MEMORANDUM To: Town Planner From: Susan Sawyer, Public Health Dir. Date: May 29, 2008 The Health Department has received the notice of the application at 1077 Osgood Street (Butcher Boy Plaza) "to install two dry good storage containers and construction of a refrigerated storage cooler within a portion of the 250' non -disturbance buffer zone". The Board of Health made a decision at their board meeting held on April 17 2008 in regards to one of the two items. The request for the construction of a refrigerated unit was approved with conditions outlined in their proposal (see attached) The second item of the dry good storage was not part of the application however it was minimally discussed. The record shows that, The rear of the plan shows steel container type structures, for non-food items such as paper bags, etc. One of the containers is 8'x40', and one is 8'x20' feet. The request letter refers to the cooler, but not the dry storage. The applicant is not proposing any use of these containers for food storage. Any requests such as this will have to come before the Board of Health. If you have any questions, please feel free to contact me. Thanks 1600 Osgood Street, North Andover, Massachusetts 01845 Phone 978.688.9540 Fax 978.688.8476 Web www.townofnorthandover.com I. NEW BUSINESS A. Butcher Boy — Proposal to construct 800 square foot outside refrigerated storage cooler Attorney Robert Levy was present to represent Butcher Boy. Present for the meeting were: Al, Tom, and Ken Yameen. Attorney Levy spoke with Ms. Sawyer and she suggested that they come before the Board of Health. Butcher Boy wants to install a walk in cooler of 794 square feet adjacent to their present facility. This is for long term storage of their goods. This storage will contain all boxed and sealed meats, ham and cheeses. The reason for this is that the business has grown, and they need more storage. There were trailers previously that have been removed, and they are looking for a permanent storage issue. The plan before the Board is dated March 25`h, and shows the proposed storage facility and also where the compressor for that facility would be located on the roof. Both are labeled and identified. The proposed storage cooler is to the rear right of the building. The cooler will be monitored 24 hours a day with an alarm system inside the deli counter, and an audible alarm if the temperature increases. The specifications for the cooler are used by many food establishments. The structure will be built on-site and placed on a concrete pad. The rear of the plan shows steel container type structures, for non-food items such as paper bags, etc. One of the containers is 8'x40', and one is 8'x20' feet. The request letter refers to the cooler, but not the dry storage. We don't have the specifications on any other items except for the cooler. The closest abutter, Mr. Ragonese is in full support of the proposed plan. A letter was submitted with his signature stating this. The diagram shows the cooler being separated from the building. It cannot be a walk through from the main facility to the cooler, as there needs to be a three foot clearance between the building and the cooler area per Fire Department regulations. Mr. Fixler asked Ms. Grant about going from the cooler, to the outside and back of the building. Ms. Grant states that there is a chance that someone could fall with the food. What would be the foot path? There is one door, 30 feet away, and one door 40 feet away. Has there been a tunnel considered? No, there is no space for this. The food items would be transported via a dolly or a forklift. The doorway is 5'x7'. The pallet is 4' wide. A normal door is 3'. The doorway access is off of a concrete pad which is off a ramp. There will be pallets and shelving. Average access to the cooler would be two to three times per day. The cooler is locked, and alarmed. Dr. Trowbridge states that the size of the cooler is larger than the two trailers. He asked if this will be enough room for all future storage. Mr. Yameen stated that in the event that they have a need for additional storage, they would come back to the Board. They think that this solution will be satisfactory for the next 5-10 years. If they find that they need a trailer for extra storage at Christmas, they will come before the Board of Health at that time. Mr. Fixler asked about other Board approvals. Mr. Yameen stated that they need approval from Zoning, and Conservation. Dr. Trowbridge asked about a building plan. Mr. Yameen stated that this would be done by a surveyor with all the setbacks. An engineer looked at this, and agreed that it is possible. Mr. Fixler asked about the noise decibel level. The unit is 90 decibels and it drops to 75 decibels at 10 feet away, and then for every 10 feet after, it goes down to 10 more decibels. The cooler is located 70-80 feet from the rear of the building. The depth of the building is approximately 120 feet from the front to the back. Dr. Trowbridge notes that the Board can accept the plan with two conditions: the possibility of a protected walk -way and a need for temporary storage will be addressed to Susan. Is there an allowed time to have a truck on the premises? Ms. Grant thinks it would be from Thanksgiving to Christmas. The request would most likely be longer than 72 hours. Butcher Boy affirms that they would specify certain dates in and out. Ms. Grant asked the question about the possibility of moving into the location next door, taking space from locations that are up for lease. The Lobster Tail is right next to Butcher Boy, so it is not possible to cut into their space. Lobster Tail benefits on the crowd coming in to Butcher Boy, as they service 8-10 thousand people per week. Mr. Fixler asked about putting something in the plan about insulation to cut down on sound. Mr. Yameen stated the cost of this would be an additional $1,000 to $1,500. Motion Dr. MacMillan would like to make a motion to accept the plan as demonstrated. This includes the cold storage unit. Mr. Fixler seconded the motion. All were in favor. FRANK J. RAGONESE 1939 GREAT POND ROAD NORTH ANDOVER, MA April 16, 2008 To Whom It May Concern: Re:1077 Osgood Street, North Andover, MA - LETTER OF SUPPORT Please. be advised that I have reviewed the application of Angus Realty/Butcher Boy Meat Market. I have no objections to the submitted plan provided that there are no substantial changes to the location of the compressor, cooler or dry storage units. As submitted, the project has my support and approval. Than: you for your consideration of this matter. Very truly yours. Frank J. 4a' (K0367315.4) (89AL COMMONWEALTH OF MASSACHUSETTS THE TRIAL COURT LAND COURT DEPARTMENT ESSEX, ss. MISC. CASE NO. 328227 (KCL) FRANK J. RAGONESE, ) Plaintiff, ) V. ) ALBERT MANZI III, ELLEN McINTYRE,) JOSEPH LaGRASSE, RICHARD BYERS, ) and THOMAS IPPOLITO' as members of ) the North Andover Board of Appeals., ) GERALD BROWN, as Building Inspector ) of the Town of North Andover, BUTCHER ) BOY MEAT MARKET, INC., and ) ANGUS REALTY CORPORATION, ) Defendants. ) DECISION Introduction Butcher Boy Market ("Butcher Boy"), a gourmet supermarket in North Andover, stores meat and produce both inside its main building and in two cold storage trailers. Each trailer is forty-five feet long, eight feet wide, and 18,000 pounds in weight and they are parked in a space only twenty feet from Butcher Boy's property line, directly abutting a residential neighborhood. The trailers have been in that same location, with almost no interruption, for over seven years. So far as the record shows, Butcher Boy has no plans of ever moving them for anything other than periodic maintenance. The trailers' compressors run on electrical power supplied from the main building via a permanent concrete base and pole, to which the trailers are attached. The compressors run twenty-four hours a day, and the noise is so loud and disturbing to the neighbors that one of them — plaintiff Frank Ragonese — sought zoning enforcement action from the North Andover Building Inspector. The plaintiff requested the removal of the trailers, contending they were "buildings" illegally placed within the setback area. Butcher Boy disagreed with this contention, taking the position that its trailers were not "buildings" and, if it wished, it could ring the entire shopping center with such trailers inside the setback — each permanently hooked -up to the main store for electricity and each with compressors operating twenty-four hours a. day — without violating any current zoning regulation. The building inspector refused to take enforcement action. North Andover's Board of Appeals (the "Board") upheld this decision. Mr. Ragonese timely filed this G.L. 40A, § 17 appeal from the Board's decision to this court. The case was tried before me, on a "case stated" basis, on stipulated facts and exhibits. Based upon those facts, those exhibits, and the North Andover Zoning Bylaw (the "Bylaw" or "North Andover Zoning Bylaw") as applied to those facts and exhibits, I find and rule that the trailers at issue are "buildings" within the scope and meaning of the Bylaw. As such, they may not be located within the setback. Both the building inspector and the Board acted on a legally untenable ground, as well as arbitrarily and capriciously, in denying enforcement action. Their decision is therefore ANNULLED. The building inspector is hereby ORDERED to enforce the. Bylaw in accordance with this Decision, and Butcher Boy Meat Market, Inc. and Angus Realty Corporation are ORDERED to remove the trailers from the setback area by no later than thirty (3 0) days from the date of this Decision. 2 The Standard of Review In a "case stated" review, "any court before which the case may come, either in the first instance or upon review, is at liberty to draw from the facts and documents stated in the case any inferences of fact which might have been drawn therefrom at a trial, unless the parties expressly agree that no inferences shall be drawn." Town of Ware v. Town of Hardwick; 67 Mass. App. Ct. 325, 326 (2006). The parties in this case agreed to "case stated" review without any limitations, and I do so. The Standard for Judicial Interpretation of a Zoning Bylaw The interpretation of bylaws is a question of law for the court, to be determined by the ordinary principles of statutory construction. Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283,290 (1981). Where ambiguities exist in the language, a statute — or, as here, a bylaw — is to be interpreted according to "the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may, be effectuated." Moloney v. Boston Five Cents Savings Bank, FEB, 422 Mass. 431,433 (1996). The language of the provision at issue is to be construed "in association with other statutory language and the general statutory plan." Sperounes v. Farese, 449 Mass. 800, 804 (2007) (quoting Polaroid Corp. v. Commissioner of Revenue, 393 Mass. 490, 497 (1984)). "Where two or more statutes relate to the same subject matter, they should be construed together so as to constitute a harmonious whole consistent with the legislative purpose." Id. (quoting FMR Corp. v. Commissioner of Revenue, 441 Mass. 810, 819(2004)). In addition, deference is given to a board's "reasonable interpretation" of its own bylaw. Livoli v. Zoning Bd. of Appeals of Southborough, 42 Mass. App. Ct. 921, 923 (1997). Wherea literal reading of the terms of amunicipal bylaw would lead to an absurd or unreasonable result, that reading is rejected in favor of one that comports with the purpose of those terms. Springfield Preservation Trust, Inc. v. Springfield Library and Museums Ass'n Inc., 447 Mass. 408, 422 (2006). See also Todino v. Town of WelNeet, 448 Mass. 234, 238 (2007) (even a strict interpretation must be reasonable; "the focus remains on the intent of the Legislature"). Facts The parties stipulated to the following facts: • Plaintiff Frank J. Ragonese is the owner of a single-family residence on a lot located at 1939 Great Pond Road in North Andover, Massachusetts. Stipulation #1. • Defendant Angus Realty Trust is the owner of a commercial property located at 1077 Osgood Street, North Andover, Massachusetts. Stipulation #2. • The Ragonese lot and the Angus lot abut at the southeasterly boundary of the Angus lot. Stipulation #3. • Mr. Ragonese has standing to bring this action. Stipulation #4. • The Angus lot, comprising approximately 5.3 acres of land, is located in two zoning districts in the Town of North Andover, namely the B-2 (business) and G.B. (general business) districts. Stipulation #5. Mr. Ragonese's lot is located in a Residential -2 (R-2) zoning district. Stipulation #6. Cd • Defendant Butcher Boy Meat Market, Inc. has operated a market on the Angus lot since the 1950's. Stipulation #7. • Angus received three special permits from the North Andover Planning Board in 1990 and 1991 to reconstruct the building on the Angus lot. Stipulation #8.1 Angus built a single -story 35,000 square foot building for retail use. Butcher Boy occupies this building along with six other retail tenants. Butcher Boy occupies approximately 13,000 square feet of the building. Stipulation #9. • Butcher Boy once sold mostly meat products. Over time, it diversified into a retail food market. Today, it continues to specialize in quality meats, with approximately fifty percent (50%) of its store area dedicated to meat products. Stipulation #10. • Butcher Boy requires cold storage for its meats and produce. It has cold storage both on and off site. Stipulation #11. • In 2000, Butcher Boy required more cold storage for meats and produce. It acquired two cold storage trailers. Stipulation #12. Butcher Boy purchased one trailer on or about August 14, 2000 and leased the other trailer from August 2000 until it purchased that trailer on or about August 18, 2005. Stipulation #13. • The two trailers are used for cold storage and must be maintained at a storage temperature of thirty to thirty-four degrees. Butcher Boy stores meats and produce in these trailers for sale at its store. Stipulation #14. 1 The first of the special permits allowed Angus to construct a detention pond within the Lake Cochickewick Watershed District. Trial Ex. 2. The second — a site plan approval — allowed Angus to construct a 320' x 120' two-story retail -office building on its 5.3 acre site. Trial Ex. 3. The third modified the site plan approval, reducing the number of stories from two to one. Trial Ex. 4. • The equipment used to maintain these temperatures requires electricity. Stipulation #15. On June 16, 2000, Butcher Boy obtained an electrical permit to connect an electrical source to the two trailers. Stipulation #16. • Butcher Boy erected a pole on a cement base to place the electrical equipment needed to power the two trailers. Stipulation #17. The electricity to power the two trailers comes from wires that lead to the Butcher Boy premises. Stipulation #18. The electrical pole is located at the rear of the Angus lot at its southeasterly boundary. Stipulation #19. • The two trailers are located at the site of the electrical pole, which is located near the delivery doors at the rear of the Butcher's Boy store. Stipulation #20. The two trailers have remained at this location since 2000 to the present, but have been moved on occasion for maintenance and repairs or to be re -registered. Stipulation #21. The two trailers are registered in the State of Maine to Butcher Boy. Stipulation #25. • On occasion, other trailers that operate with diesel and not electricity are brought to the Angus lot during busy seasonal use, which is not an issue in this case. Stipulation #22. • A photograph taken from the air shows the Angus and Ragonese lots, the building where Butcher Boy operates its business, the Ragonese house and the two trailers. Stipulation #23. See Ex. 1 attached to this Decision. The two trailers are located approximately twenty (20) feet from the southeasterly boundary of the Angus lot. Stipulation #24. n • Each trailer is approximately the same size and weight. Each trailer is forty-five feet long, eight feet wide and thirteen feet, six inches high from the ground to the top of the trailer.2 Each trailer weighs approximately 18,000 pounds. Stipulation #26. Each trailer has four wheels on the rear, and two steel supports at the front. Stipulation #27. In order to move one, a cab or tractor must be attached to the trailer. Stipulation #28. • Each trailer is constructed of steel and aluminum. The walls, roof and floor are insulated. The thickness of the walls, roof and floor is approximately three inches. Each trailer has doors for access, and no windows. Stipulation #30. • For approximately one year, Butcher Boy placed a hood between the two trailers. The hood was held up on two posts and placed on top of the trailers. The hood was removed in the beginning of 2007. Stipulation #29. • On April 14, 2006, Mr. Ragonese made a formal request to the Building Inspector for zoning enforcement action, contending that Butcher Boy "has placed/constructed accessory structures in violation of the approved site plan and failed to obtain any permits prior to action." Trial Exhibit 5. By letter dated April 27, 2006, the Building Inspector refused that request. Trial Exhibit 6. On May 24, 2006, Mr. Ragonese timely appealed the Building Inspector's denial to the North Andover Board of Appeals. Stipulation #31 & Trial Exhibit 7. The Board upheld the Building Inspector's denial by decision filed with the town clerk on August 3, 2006. Trial Exhibit 8. Mr. Ragonese timely appealed that decision to this court. Stipulation #31 & Trial Exhibit 9 2 Since the interior of the trailers are more than six feet high, they each thus contain more than 2,500 square feet of storage space. VA • On May 23, 2007, one of the trailers was moved from its location, taken out of the Butcher Boy parking area with a motorized tractor, driven on Route 125 in front of the Butcher Boy plaza, and returned to its prior location. Stipulation #32. At all times relevant hereto, both trailers have been federally inspected, mobile, and have met all federal and state standard[s] of roadworthiness. Stipulation #33. The Relevant Bylaw Provisions The Town of North Andover's Zoning Bylaw lists among its purposes "preventing overcrowding of land," "conserving the value of land and buildings," and "providing adequate light and air." Bylaw § 1. It defines an "accessoryuse or structure" as "a use or structure subordinate to the principal use of a building on the same lot and serving a purpose customarily incidental to the use of the. principal building." Bylaw § 2.21 It defines a "building" as "a structure having a roof supported by columns or walls for the shelter, support or enclosure of persons, animals, or property." Bylaw § 2.26 It defines a "structure" as "a combination of materials to form a construction that is safe and stable, including, among other buildings, stadiums, tents, reviewing stands, platforms, staging, observation towers, radio towers, water tanks, towers, private and public swimming pools, trestles, piers and wharves, sheds, shelters, fences and walls, and display signs; the term structure shall be construed as if followed by the words `or part thereof."' Bylaw § 2.68.3 3 Because the parties presently disagree on the correct wording of this bylaw provision, I take the wording as it appears in Stipulated Exhibit 16, p. 22. In a post -trial submission, the Town Clerk certified that the actual language of Bylaw § 2.68 (the definition of "structure") is "a combination of materials to form a construction that is safe and stable, including, among others, buildings, stadiums, tents, reviewing stands, platforms, staging, observation towers, radio towers, water tanks, towers, private and public swimming pools, trestles, piers and wharves, sheds, shelters, fences and walls, and display signs; the term structure shall be construed as if followed by the words `or part thereof."' Letter from Town Clerk Joyce N. It defines "Yard, Rear (Setback)" as "an open space extending across the entire width of a lot between the rear of any building thereon and the rear lot line of the lot on which such building stands." Bylaw § 2.74 Buildings in B-2 districts are required to have a minimum rear setback of thirty feet. Bylaw, § 7.3; Table 2: Summary of Dimensional Requirements. Buildings in GB districts are required to have a minimum rear setback of thirty-five feet. Bylaw, § 7.3; Table 2: Summary of Dimensional Requirements. Adjacent to a residential district, an additional fifteen foot rear setback is required in both the B-2 and GB districts, with the first fifteen feet of the total setback abutting the residential district to remain open and green, be suitably landscaped, un -built upon, unpaved, and not parked upon. Bylaw, § 7.3; Table 2: Summary of Dimensional Requirements; n.2. Analysis This case presents a single issue. Are 2,500+ square foot cold storage trailers, registered as "long-term semi -trailers" in the State of Maine and capable of being moved if hitched to a cab or tractor but, in actuality, permanently parked and receiving their electric power by permanent hookup to a retail supermarket market building whose operations use them as permanent storage space, "buildings" within the scope and meaning of the North Andover Zoning Bylaw and thus subject to its building setback requirements? I conclude that they are. Any other conclusion not only contradicts the express language of the Bylaw, but completely undercuts its clear intent and would lead to an unreasonable result. A. Bradshaw (July 11, 2007). Since my Decision would be the same under either wording, the difference is not material. 9 I begin with the purposes of the Bylaw, which include the prevention of overcrowding, conserving the value of land and buildings, and providing adequate light and air. Bylaw § 1. Building setbacks are central to the achievement of these purposes, and it is significant that the Bylaw requires an additional fifteen foot setback in business zones abutting residential zones. Bylaw, § 7.3; Table 2: Summary of Dimensional Requirement; n.2. The clear intent of this requirement is to have a wide separation between residences and the noise, traffic and other impacts of commercial enterprises. Whether Butcher Boy's trailers must conform to these setback requirements requires me to determine whether the trailers are "buildings" within the.meaning of the Bylaw. Consistent with the intention to have wide separations, "buildings" are given a broad definition in the Bylaw. They are "structure[s] having a roof supported by columns or walls for the shelter, support or enclosure of persons, animals, or property." Bylaw § 2.26. "Structures" are broadly defined as "a combination of materials to form a construction that is safe and stable," and "sheds," "shelters" and even "tents" are given as explicit examples. Bylaw § 2.68. Butcher Boy, supported by the decisions of the building inspector and the Board, contends that its cold storage trailers are not "buildings" because they lack permanency. They can be moved at any time, Butcher Boy says, and they have up-to-date registrations so they can be so moved. It is indicative, however, that they have not been moved in over seven years except for periodic maintenance and for a trip around the block, shortly before trial, to show the court their mobility if a need arose. It should not go unnoticed that Butcher Boy never saw such a need previously. 10 Moreover, Butcher Boy's argument ignores the clear language of the Bylaw. As just noted, "buildings," are defined as "[1] structure[s] having a roof supported by columns or walls [2] for the shelter, support or enclosure of persons, 'animals, or property." Bylaw § 2.26. The cold storage trailers in this case perfectly fit both aspects of this definition. They have a roof supported by walls. They are used for the shelter, support and enclosure of property. They receive the electricity they need via a permanent hookup (wires attached to a pole, mounted on a permanent concrete base that required an electrical permit from the town).4 They are buildings because they are in a fixed location and intended, and used, for permanent storage. As their seven years in the exact same location show, they are. neither used, nor intended for use, as mobile transport. They are, for all practical purposes, accessory structures mounted on a wheeled base, the wheels serving solely as foundation posts.5 To see them as anything other than storage buildings is to ignore reality. As the late Supreme Court Justice Felix Frankfurter observed in another context, "there comes a point where [we] should not be ignorant as judges of what we know as men." Watts v. Indiana, 338 U.S. 49, 52 (1949). This is that point.6 4 Trial Ex. 13. 5 See State v. Perry, 149 Conn. 232, 235 (1962) (finding that the use of trailers was an attempt to expand freezing and storing operations in violation of the zoning regulations). Although State v. Perry is a nonconforming use case, the court saw through the defendant using a trailer (which, as in this case, could be moved) to impermissibly expand his operations in violation of the zoning regulations. I agree with the logic of the Supreme. Court of Connecticut — "What he cannot do directly he has attempted to do indirectly by the importation of the trailer." Id. Butcher Boy cannot use a trailer to avoid the setback requirements for buildings. 6 I reject Butcher Boy's argument that, because "trailers" are not explicitly referenced in the Bylaw definitions of "structures" or "buildings," they cannot be considered as such. The Bylaw definitions are broad ones, focusing on function rather than name, and the specific references (e.g., "shed," "shelter") are inserted for illustrative purposes, not limiting ones. The Bylaw definition of "structure" specifically says "including," not "limited to." I also reject Butcher Boy's argument based on Tolley Co. v. Theken, Jackson Township Zoning Inspector, 2000 Ohio App. LEXIS 3699 (Aug. 14, 20.00). Tolley Co. is a decision from another state and has no precedential effect in Massachusetts. I note that it was decided by a regional appellate court, and was never reviewed by a higher court I am also not persuaded by its reasoning. It interprets a different Bylaw and, in my view, does so incorrectly. See State v. Perry, supra. Finally, I reject Butcher Boy's argument that "buildings" must be "permanent" to fall within the Bylaw's definition. The word "permanent" does not appear in either Bylaw § § 2.26 or 2.28. It appear only in an unrelated 11 Butcher Boy's arguments implicitly raise the specter of the slippery slope. Surely delivery trucks can park overnight prior to being unloaded without being deemed "buildings." What about two nights? What about a few more? At what point are trailers transformed into "buildings"? Does such an inquiry inevitably drift into an analysis of "intent," and may a zoning board permissibly conduct such an inquiry? More importantly, does the North Andover Zoning Bylaw allow such an analysis? There is a short answer to these questions, and that is this. None of them arise in the context of this case. Here, the Bylaw focuses on function (does the structure have a roof supported by walls and, if so, is it being used "for the shelter, support or enclosure of persons, animals, or property"?). It is conduct that is being judged — the continuous, seven-year usage of cold storage trailers, with their compressors "on" around the clock, parked in a single location near the store's receiving dock, getting their electricity via a permanently - installed hookup that required an electrical permit to be built. In a very real sense, all law consists of drawing lines. This line is an easy one, and long since crossed. See Irwin v. Gavit, 268 U.S. 161, 168 (1925) (Holmes, J.). Other than the Bylaw requirement that they have walls and a roof, it is not, as Butcher Boy argues, the nature of the trailers that determines whether they are "buildings" or not. It is the nature of their use. The trailers are not being used for transport. They have been in a single location for years and are used exclusively for storage. As such, they are "buildings" subject to the Bylaw's setback requirements. section of the Bylaw, § 4.136(c)(iii) (prohibited uses in Watershed Protection District buffer zones), and its absence from the provisions relevant to this case is thus significant. Moreover, to the extent the trailers need a degree of permanency to fall within the definition of a building, their seven-year use for the same purpose at the same location is sufficiently permanent. 12 Conclusion For the foregoing reasons, the Board's decision upholding the building inspector's refusal to take zoning enforcement action against the Butcher Boy cold storage trailers is ANNULLED. The trailers are "buildings" within the meaning of the North Andover Zoning Bylaw, and thus must comply with the Bylaw's setback requirements. The Board's and the building inspector's rulings to the contrary were incorrect, arbitrary and capricious, would lead to an unreasonable result contrary to the clear intent of the Bylaw, and thus are not entitled to any deference. The building inspector is hereby ORDERED to enforce the Bylaw in accordance with this Decision, and Butcher Boy Meat Market, Inc. and Angus Realty Corporation are ORDERED to remove the trailers from the setback area by no later than thirty (30) days from the date of this Decision. Judgment shall issue accordingly. SO ORDERED. Dated: 31 October 2007 Keith C. Long, Justice 13 Sr - ME 1 y� y l 7 - ,^ - - 'moi { "✓ •� i ^'n ,i ME 1 y l ti .a0. COMMONWEALTH OF MASSACHUSETTS THE TRIAL COURT LAND COURT DEPARTMENT ESSEX, ss. MISC. CASE NO. 328227 (KCL) FRANK J. RAGONESE, ) Plaintiff, ) V. ) ALBERT MANZI III, ELLEN McINTYRE,) JOSEPH LaGRASSE, RICHARD BYERS, ) and THOMAS IPPOLITO, as members of the North Andover Board of Appeals, ) GERALD BROWN, as Building Inspector ) of the Town of North Andover., BUTCHER.) BOY MEAT MARKET, INC., and ) ANGUS REALTY CORPORATION, ) Defendants. JUDGMENT This case is plaintiff Frank J. Ragonese's G.L. c. 40A, § 17 appeal from the August 3, 2006 decision of the North Andover Board of Appeals affirming the Building Inspector's denial of zoning enforcement action against defendant Butcher Boy Meat Market, Inc. For the reasons set forth in the court's Decision of this date, the Board's decision is ANNULLED. The building inspector is hereby ORDERED to enforce the North Andover Zoning Bylaw in accordance with the Decision, and Butcher Boy Meat Market, Inc. and Angus Realty Corporation are ORDERED to remove the trailers from the setback area by no later than thirty (30) days from the date of this Judgment. Dated: 31 October 2007 Deborah J. Patterson Recorder A TRUE CORY ATTEST: RECORDER I. The specific site:is an appropriate location for the proposed use as all feasible storm water and erosion controls have been placed on the site; 2. The use will not adversely affect the neighborhood as the lot is located in a General Business zoning district; 3.° There will be no nuisance or serious hazard to vehicles or pedestrians; 4. Adequate and appropriate facilities are provided for the proper operation of the proposed use; 5. The existing lot conforms to the minimurrt lot area requirements for a lot within the General Business District as -shown in Table 2 of the North Andover Zoning By-laws. 6. The Planning Board also makes a specific finding that -the use is in harmony with the general purpose and intent of the North Andover Zoning Bylaw. Upon reaching the above findings, the Planning Board approves this Watershed Special Permit based upon the following .SPECIAL CONDMONS: 1. ZBA approved a variance from Section 7 Paragraph 7.3 for yards setbacks. 2) Prior to issuance of a building permit: a)' A performance guarantee of $1,000.00 in the form of a check made out to the Town of North Andover must be posted to insure that construction will take place in accordance with the plans and the conditions of this decision and to ensure that the as -built plans will be submitted, b) All erosion control measures as shown on the plan must be, int place and revised by the Town PlMM-r. 3) Prior to release of the Performance Bond: a) The applicant shall submit an as -built plan stamped by a Registered Professional Engineer in Massachusetts that shows all construction, including storm water mitigation trenches and Other pertinent site features. This as -built plan shall be submitted to the Town Planner for approval. The applicant must submit a certification from the design engineer that the site was constructed as shown on the approved plan. b) The Planning Board must by a majority vote make a finding that the site is in conformance with the approved plan. 4) In no instance shall the applicant's proposed construction be allowed to further impact the site other than as proposed on the plan referenced in Condition # 1. 5) No open burning shall be done except as is permitted during burning season under the Eire Department regulations. 6) The Contractor shall contact Dig Safe at least 72 hours prior to commencing excavation. 7) The provisions of this conditional approval shall apply to and be binding upon the applicant, it's employees and all successors and assigns in interest or control. 1077 Osgood Street — Wstashed Special Permit hme 18, 2008 Page 3 y tt�,sv ,6* •rO` o? t ��O tK•�pGMiwKw _ �. PUBLIC HEALTH DEPARTMENT Community Development Division October 6, 2008 Thomas Yameen Butcher Boy Market 1077 Osgood Street North Andover, MA 01845 Re: Request for holiday use of refrigerated trailers Dear Mr. Yameen, The Health Department has received your verbal request regarding the use of temporary refrigerated trailers for the upcoming holiday season. Although the concept of your request is understood, the conversations held between you and I cannot be formerly responded to without a written detailed request. This office will be able to provide you with a formal answer, with the submission of proper documentation and explanations. The storage issues faced by Butcher Boy are well documented and understood by the Board of Health and do not need extensive explanation. In April of 2008, the Board of Health accepted a proposal to install an outdoor refrigeration unit to alleviate ongoing storage space inadequacies at Butcher Boy Market. The approvals given were to be implemented and utilized so that trailers would not be necessary. In July, the Planning Board also approved a similar proposal in a decision dated July 2, 2008. With the approval, the Board of Health expected the trailer issue to be one of the past, however if you would like to pursue the issue of once again utilizing trailers for the storage of turkeys please submit the following. 1) A document detailing the status of the installation of the refrigeration and the reason this approved measure is not completed to date. Proof by contract, building permit etc. that show intent to build by a certain future date 2) Plans showing any items detailed in the cover letter 3) Describe plans to provide protection of the turkeys while in the trailer 4) A description of the vehicles proposed to be utilized 5) Dates, proposed locations and other pertinent information 1600 Osgood Street, North Andover, Massachusetts 01845 Phone 918.688.9540 Fox 918.688.8416 Web www.townofnorthandover.com I Thank you for your anticipated cooperation in this matter. Since, , "�/ Susan Sawyer, RPJHS/RS Public Health Director Cc Gerald Brown, Inspector of Building Judy Tymon, Planning Director Board of Health members 1600 Osgood Street, North Andover, Massachusetts 01845 Phone 918.688.9540 fox 918.688.8416 Web www.townofnorthondover.com yORi Of 52li • 9 Town of North Andover �'• o :: HEALTH DEPARTMENT ,SSACMU+f' CHECK #: � ,,6 DAT LOCATION: H/O NAME: CONTRACTOR N Type of Permit or License: (Check box) $ ❑ Animal $ ❑ Body Art Establishment $ ❑ Body Art Practitioner $ ❑ Dumpster $ ❑ Food Service - Type: $ ❑ Funeral Directors $ ❑ Massage Establishment $ ❑ Massage Practice $ ❑ Offal (Septic) Hauler $ ❑ Recreational Camp $ ❑ Sun tanning $ ❑ Swimming Pool $ ❑ Tobacco $ ❑ Trash/Solid Waste Hauler $ ❑ Well Construction $ SEPTIC Sustems: ❑ Septic - Soil Testing $ ❑ Septic - Design Approval $ ❑ Septic Disposal Works Construction (DWC) $ ❑ Septic Disposal Works Installers (DWI) $ ❑ Title 5 Inspector $ ❑ Title 5 Report $ 6`0ther: (Indicate) i Health Agent Initials White - Applicant Yellow - Health Pink - Treasurer Town Of North Andover Department of Weights and Measures 1600 Osgood St. Blg 20 Suite 2-36 North Andover 01845 Phone (508)783-6403 TO Butcher Boy 1177 Osgood St. North Andover 01845 H V 0 Y1 DATE:2/13/11 FOR: Testing and Sealing of Weights and Measures Devices Fees and adjusting charges authorized by Section 56, M.G.L. Chapter 98 as amended. Device Legal Sealing Fees Adjusted Sealed AMOUNT Scale more than 10lbs less than a 100lbs $12.00 21 $252.00 C rc4R a zu» TOWN OF NORTH ANDOVER HEALTH CIEPARTMENT TOTAL 1 $252.00 This is to certify that I have this day tested, adjusted, sealed or condemned the above des ed device in compliance with the M.G.L., Chapter 98 as most recently amended. Inspector — S al r of Weights and Measures Date 0 al-