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HomeMy WebLinkAboutMiscellaneous - Exception (69)MPG Realty Trust file in chronological order. ( Today's date: 2/26/2001.) 2/24/98 & Petition Published in Eagle -Tribune twice. 3/3/98 prior to March 10, 1998 public hearing. 3/10/98 Hearing of petition: 006-98 Town Clerk stamp: March 18, 10:40 AM' 98 Voted to allow the applicant to withdraw without prejudice (copy of application Feb. 12, 1:04 PM'98). 3/10/98 Letter from PD Associates, LLC to withdraw without prejudice. 3/31/98 & Petition published in Eagle -Tribune twice prior to April 14, 1998 public hearing. 4/7/98 4/10/98 Letter from Atty. Michael Gerstein, Phillips, Gerstein, Holber & Channen, with copy of the memorandum in support of applicant's request for a variance. 4/14/98 Hearing of petition: 010-98 Town Clerk stamp: April 21, 12:01 PM'98 Voted to deny the variance (copy of application dated 3/13/98). 4/21/98 Planning Board approval of Special Permit Repetitive Petition. 4/23/98 Planning Board approved Watershed Special Permit 4/27/98 & Petition published in Eagle -Tribune twice prior to May 11, 1998 public hearing. 5/4/98 5/11/98 & Hearing of petition: 011 7/13/98 5/26/98 & Petition published in Eagle -Tribune twice prior to June 9, 1998 public hearing. 6/2/98 5/29/98 Letter from Walter F. Soule, Vice Chairman, Zoning Board of Appeals to Atty. Joel Bard of Kopelman & Paige. 6/3/98 Letter from PD Associates, LLC to North Andover Planning Board to withdraw the repetitive hearing application without prejudice with Planning Board decision attached, Town Clerk stamp: June 3, 4:27 PM'98. 6/9/98 Letter from Atty. Joel Bard in response to Walter F. Soule on "Repetitive Petitions". 6/9/98 Request for 2 month extension until August 1998 meeting. 4/5/99 Correspondence between Planning & Zoning Boards Rowan & Vivenzio. 0 I 4/26/99 Correspondence between ZBA Secretary and Atty. Urbelis land court misc. no. 247838. (ZBA). 4/27/99 & Petition published in Eagle -Tribune twice prior to May 11, 1999 public hearing. 5/4/99 4/27/99 Atty. Urbelis correspondence to Robert Ford (ZBA) "Repetitive Petition of MPG" 5/11/99 & Hearing of petition: 011-99, Town Clerk stamp: July 20, 3:03 PM'99, voted to 7/13/99 grant the repetitive petition. 5/13/99 & Correspondence from Maria Dowd suit v. ZBA & Court dismissal. 7/12/99 6/22/99 Letter from PD Associates LLC. on request for repetitive partition & variance. MI/MPGrealty February 26, 2001 The variance was GRANTED on the Repetitive Petition #011-99, dated July 20, 1999. Available department records indicate that the petitioner has not recorded the Variance in the Northern Essex Registry of Deeds. Pursuant to Chapter 40A, Section 10 and the North Andover Zoning By-law Section 10.4 (2) (a) " If the rights authorized by the Variance are not exercised in one (1) year of the date of grant, they shall lapse and may be re-established only after notice and a new hearing" I am of the opinion that the Variance lapsed for not having been recorded or exercised within the one (1) year time frame. Application was not made to the Zoning Board of Appeals to extend the time for exercise of such rights for a period not to exceed six (6) months, pursuant to the Rules and Regulations of the North Andover Zoning By-law, Chapter 40A, Section 10; and the North Andover Zoning By-law. i Post -it® Fax Note 1 A- t +`' 7671 Date # of To From L2) pages 2%Zpages - e.- Coy/Dept Co. .Z,6 A Phone # /T Phone # I, Received by Town Clerk: Fax# Fax# 0� TOWN OF NORTH;ANDOVER, MASSACHUSETTS _. BOARD OF APPEALS APPLICATION FOR RELIEF FROM THE ZONING ORDINANCE Applicant MPG Realty Corporation Address 11 Old Boston Road Tewksbury, MA 01876 Tel. No. 978-851-9395 1. Application is hereby made: a) For a variance from the requirements of Section 4 Paragraphl36.3(d) (ii) and Table of the Zoning Bylaws. b) For a special Permit under Section Paragraph of the Zoning Bylaws. c) As a Party Aggrieved, for review of a decision made by the Building Inspector or other authority. Planning Board the applicability of Section 4.136(d)(ii) 2. a) Premises affected are land and building(s) numbered Street. b) Premises affected are property with frontage on the North (x) South ( ) East ( ) West ( ) side of Dale Street Street. Street, and known as No. Map 37B Lot #1 Dale Street. c) Premises affected are in Zoning District R-1 , and the Premises affected have an area of 1,305,493 scruare feet and frontage of 50' & 186' feet. S of 8 s 3. Ownership: a) Name and address of owner (if joint ownership, give all names) : Iff R. Ashton & Gwendolyn C. Smith, C/O Trustee Geoffrey Smith 15 Driftwood Drive, North Bradford, CT 06471 Date of Purchase 3-25-60 Previous Owner 1. If applicant is not owner, check his/her interest in the premises: X Prospective Purchaser Lessee Other 2. Letter of authorization for Variance/Special Permit required. 4. Size of proposed building: N/A front; feet deep; Height stories; feet. a) Approximate date of erection: N/A b) Occupancy or use of each floor: N/A c) Type of construction: N/A 5. Has there been a previous appeal, under zoning, on these premises? No If so, when? 6. Description of relief sought on this petition From planning board request and/or approval to construct roadway with required details within 751conservation 7. Deed recorded in the Registry of Deeds in Book 912 Page See attach, Land Court Certificate No. Book Page 188 letters., The principal points upon which I base my application are as follows: (must be stated in detail) (1) Property has 2 existing access points, both of which are within close proximity to urisdictional wetlands. No other reasonable means are available. and --t o h' applicant feels the applicability of this 4.136(d)(ii is quest ione , p anning board has requested we seek this relief. I agree t^ pay the filing°`fee, advertising in newspaper, and incident- = exr;enses* Rev U'�.'_.:, Signature of Petitioner(s) Mi . M:7 F DESCRIPTION OF VARIANCE REQUESTED ZONING DISTRICT: Residential (R-1) - Recuired Setback or Area N/A Lot Dimension Area Street Frontage N/A Front Setback N/A Side Setback(s) Rear Setback N/A N/A Special Permit Request: Existing Setback Relief or Area Requested This request is for a lot created prior to October 24, 1994. Such request for Special Permit is further submitted pursuant to the provisions of the Watershed Protection Bylaw, if applicable. Such applicability is questioned by the applicant, but, is hereby submitted to adhere to a request of the planning board. 7 of 8 j [k, V S L I� 9'33 CASE # TOWN OF NORTH ANDOVER ZONING BOARD OF ADJUSTMENT OWNER'S AFFIDAVIT I, the undersigned, owner of property located at Dale Street and identified as Man 37B - do hereby authorize MPG Realty Corporation and its representatives 11 Old Boston Road Tewksbu MA 01876 to make the following request with respect to the above-described property: Any and all requests for the approval of Berrington Place an 8 Lot subdivision with roadways and all improvements as shown on plans by Allen & Major Associates Inc of Woburn MA as may be required bathe Watershed Protection Bylaw and the Planning Board. Please refer to Special Permit application and accompanying documentation for submittal of this request for ZBA consideration. R. Ashton & Gwendolyn C. Smith Signature w rustee Geoffrey Smith 15 Driftwood Dr. North Bradford CT 06471 Address January 23 1998 Date nazba.doc Z5 Town of North Andover �' �''` { ` OFFICE OF ITY DEVELOPMENT AND SERVICES 146 Main Street FE$ I 04; p# North Andover, Massachusetts 01845 o . o REQUIREMENTS AND DIRECTIONS OF THE ZONING BOARD OF APPEALS FOR FILING APPLICATION FOR THE FOLLOWING• VARIANCES AND SPECIAL.PERMITS PARTY AGGRIEVED 1. Every application for action by the Board shall be made on a form approved by the Board. These forms shall be furnished by the Administrative Secretary upon request. Any communication purporting to be an application shall be treated as mere notice of intention to seek relief until such time as it is made on the official application form. All information called for by the form shall be furnished by the applicant in the manner therein prescribed. 2. Original and ten (10) copies of the application with a certified abutters list from the Assessors office. (Certified abutters list must accompany application.) 3. Ten (10) copies of the site plan, and one mylar. The mylar shall be stamped by a Registered Land Surveyor or a Professional Engineer (with discipline). The signature box shall have five lines for signatures. The mylar and decision are to be recorded with the Registry of Deeds after signed approval from the Zoning Board of Appeals. A copy of recording will accompany any building permit application according to M.G.L. Chapter 409, Section 14. 4. The fee 'for publishing the legal notice will be paid for by the petitioner when he/she delivers the legal notice to the newspaper. The legal notice shall be published twice, one week apart in the local newspaper. 5. A copy of the legal notice must be sent to all abutters, by Zoning Board of Appeals Secretary, via certified mail return receipt requested at least 7 days prior to the public hearing. The petitioner will be responsible and billed for postage incurred for mailing of the legal notice and the decision. The Zoning Board of Appeals Secretary will also mail the Notice of Decision to the Abutters and the Petitioner. 1 of 8 n.�•onno �oFc:t roo_��,jj TT"T`rn 49* 09-C t-r%x017T)Nf rrV �sootz�, uFeTTLj �2R_c54� �*.et�rTrtATr �oo.gtzC Received by Town Clerk: TOWN OF NORTH ANDOVER, MASSACHUSETTS BOARD OF APPEALS APPLICATION FOR RELIEF FROM THE ZONING ORDINANCE Applicant MPG Realty Corporation Address 11 Old Boston Road Tewksbury, MA 01876 Tel. No. X78-851-9395 1. Application is hereby made: a) For a variance from the requirements of Section 4 Paragraph136.3(d) (ii) and Table of the Zoning Bylaws-. b) For a special Permit under Section Paragraph of the Zoning Bylaws. c) As a Party Aggrieved, for review of a decision made by the Building Inspector or other authority. Planning Board the applicability of Section 4.136(d)(ii) 2. a) Premises affected are land and building(s) numbered Street. b) Premises affected are property with frontage on the North (X) South ( ) East ( ) West ( ) side of Dale Street Street. Street, and known as No. Map 37B Lot #1 Dale Street. c) Premises affected are in Zoning District R-1 , and the premises affected have an area of 1,305,493 square feet and frontage of 50, & 186, feet. 5 of 8 Rc'i . 13 . 96 G 3. Ownership: a) Name and address of owner (if joint ownership, give all names) : R. Ashton & Gwendolyn C. Smith, C/O Trustee Geoffrey Smith 15 Driftwood Drive, North Bradford, CT 06471 Date of Purchase 3-25-60 Previous Owner b) 1. If applicant is not owner, check his/her interest in the premises: X Prospective Purchaser Lessee Other 2. Letter of authorization for Variance/Special Permit required. 4. Size of proposed building: N/A front; feet deep; Height stories; feet. a) Approximate date of erection: N/A b) Occupancy or use of each floor: N/A c) Type of construction: N/A S. Has there been a previous appeal, under zoning, on these premises? No If so, when? 6. Description of relief sought on this petition From planning board request and/or aroval to construct roadway with required details within 'conservation 7. Deed recorded in the Registry of Deeds in Book 912 Page zj0a.1See attach Land Court Certificate No. Book Page 188 letters.) The principal points upon which I base my application are as follows: (must be stated in detail) (1) Property has 2 existing access points, both of which are within close proximity to urisdictional wetlands. No other reasonable means are available_an though' - applicant feels the applicability of this 4 136 d ii is questioned, planning board has requested we seek this relief. I agree incident pay the expenses* S Rev 06.,,_.96 filing fee, advertising in newspaper, and ature of Petitioner(s) DESCRIPTION OF VARIANCE REQUESTED ZONING DISTRICT: Residential (R-1) Required Setback Existing Setback Relief or Area or Area Requested N/A Lot Dimension Area A Street Frontage N/A Front Setback N/A Side Setback(s) N/A Rear Setback Special Permit Request: This request is for a lot created prior to October 24, 1994. Such request for Special Permit is further submitted pursuant to the provisions of the Watershed Protection Bylaw, if applicable. Such applicability is questioned by the applicant, but, is hereby submitted to adhere to a request of the planning board. .Ler 06.0-3.96 7 of 8 I Of PARTIES Of INTERF MECT PROPERTY tAP I PAR 8 rnExS: t+4lME CT ADDRESS --�- /r- S t - 'I lU _ A-;,11.., %L. Q .Tr' Com. BY: - DATE: Il MECT PROPERYY IAP I PAR *I j4 M�Wo ml P -M W, ON MY IiW- WA R Pp. j4 :T of PARnF-q OF IAfm C1r nnlr-r 7 nr CERT.BY DATE; sI ry1 W -PA !� . ♦ . w WMEWO. NWA WRICON „. . . . ►• • �0� M ii i • I i �� •• /moi • A YAWAM i CERT.BY DATE; sI I Of PAJM ES Of WTERM. MCT PROPUM up I PAA _ tyq E I ADDRESS CERT. BY: ' DATE: I m MI 7 MW rr` ' ' . 490 G r ' r CERT. BY: ' DATE: I I OF PAHnjE4 if thTutfsT: PAGE J Af U(CT PROPERLY [AP PAR x NWE ADUii�S3 A,H aanq.Iy CERT. BY: DATE Dale- C IPe�L rn. -------------- L L n oo Wco Ln 9 n 14 Ealt/ Te"PH C-ru I.- -tee; -&4a lig L C 4) T.eusT � urd .Sr Ti • Cti r a i d C. G7 q r n r / e e d G a N ,.- 3 cir S Zc S /. Zaonna. � . 1c�1,;tc . 9E •«- I?ic' -�- vet. , Iy1� / �/ A,H aanq.Iy CERT. BY: DATE r oF PARnis of RnRksi; PAGE, -40 — . Of-- ufa PROPERTY AP PAR x I�ld7i4£ ADDRESS TTM; 0+ d Ie-,& x vlq 70 e -t T. Kj (7,ao ZI -c2l t4pa),n rd .4 FrtM ei- -j- J/ 5- /ia, o -PIP rn i -A cw . 17c s e7` r-- /a CERT. BY: DATE: JAN 3 E CASE # TOWN OF NORTH ANDOVER ZONING BOARD OF ADJUSTMENT OWNER'S AFFIDAVIT I, the undersigned, owner of property located at Dale Street and identified as Map 3713 - Lot #1. ' do hereby authorize MPG Realty. Corporation and its representatives 11 Old Boston Road Tewksbu k01876 to make the following request with respect to the above-described property: AU and all requests for the approval of Berrington Place an 8 Lot subdivision with roadways and all improvements as shown on plans prepared by Allen & Major Associates, Inc of Woburn MA as may be required by the Watershed Protection Bylaw and the Planning Board Please refer to Special Permit application and accompanying documentation for submittal of this request for ZBA consideration. R. Ashton & Gwendolyn C. Smith /. OC—Lll— Signaturew rustee Geoffrey Smith 15 Driftwood Dr. North Bradford, CT 06471 Address January 23 1998 Date nazba.doc Herbert P. Phillips, PC. LAW OFFICES OF Michael A. Gerstein (111 %j'11c, 6&SkkfAOfV fir clwwn Stuart M. Holber �' 11 u4! fl Russell S. Channen Jane M. Owens Triano - 25 Kenoza Avenue ■ Haverhill, MA 01830 ■ Tel. (508) 374-1131 1 Fez (508) 372-3086 Ronald N. Beauregard Kevin P. Rauseo Of Counsel: John T. Pollano July 23, 1997 William J. Scott Director of Community Development and Services Town of North Andover 146 Main Street North Andover, MA 01845 Re: "Smith Property" Dale and Appleton Streets North Andover, Massachusetts Dear Mr. Scott: Please be informed this office represents MPG Realty Corp. relative to its desire to subdivide the above property. I have received a copy of the letter of Kathleen Bradley Colwell, Town Planner, dated April 24, 1997 relative to her position that my client would need another access point to the property and, if not, would require a variance from the. Zoning Board of Appeals. I have had occasion to review my client's file, the Town of North Andover Zoning Bylaws, the Wetlands Protection Bylaw, and the Wetlands Regulations for the Town of North Andover. I have also examined the title to the property, and I am of the belief that town counsel will concur that a variance will not be required. I am listing herewith my reasons and would request you submit this letter to Town counsel for his/her review and continents. It is my client's further hope and desire to proceed with the subdivision in an expeditious manner, and I believe town counsel should be involved to address these concerns currently. Pursuant to the provisions of the Zoning By -Laws, and, in particular, Section 4.136 dealing with "Watershed Protection District", it is stated under 4.136.21, "the provisions relating to the establishment of the Conservation Zone and the enlargement of the non -disturbance zone and the non -disturbance zones shall only apply to lots recorded and registered after the date of the enactment of this amendment." (October 24, 1994). Please be aware that the Smith Property in question was purchased March 25, 1960 as recorded at Book 912, Page 187 of the Essex North District Registry of Deeds, a copy of which deed I am enclosing herewith. It is certainly acknowledged that the North Andover Conservation Commission is empowered by the Wetlands Protection Bylaw to preserve and protect the wetland resource auras, and to adopt All attorneys admitted in Massachusetts. Holber and Beauregard admitted also in New Hampshire. Holber admitted also in Maine. Other office: 32 Saco Avenue, P.O. Box W, Old Orchard, ME 04064 Reply to Haverhill office only Orders of Conditions which are necessary to regulate its responsibility. The Conservation Commission does have the authority to waive strict compliance with its regulations, when in its judgment, such action would be consistent with the intent and purposes of the Bylaw. I certainly acknowledge that my client, as an applicant, has the burden of proving that the grant of a waiver is consistent with the intent and purposes of the Bylaw. I wish to further acknowledge that the proposed subdivision and its current access points are in the non -disturbance buffer zone, although the following uses shall be allowed within such zone only by Special Permit, issued pursuant to Section 4 of the Watershed Protection District Bylaw: 1. Any activities which cause a change in topography or grade; 2. Vegetation removal or cutting, other than in connection with agriculture uses or maintenance of a landscape area. 5. Any surface or subsurface discharge, including but not limited to storm water runoff, drainage of any roadway that is maintained by the Division of Public Works or any private association; outlets of all drainage swales; outlets of all detention ponds. You should be aware that the current roadway that is used and would be proposed to be used to access the property has a width of between thirty (30) and forty (40) feet. Correspondingly, the shoulders of the roadway are thirty eight (38) to fifty (50) feet. The slopes therein are currently eroding and partially treated, and the degradation of the adjoining or abutting wetlands are affected during heavy rains by the sediment from the soil in the slopes. Based upon such situation, the improvement to the roadway would greatly reduce the erosion and would serve to better direct and treat any storm water runoff. The addition of a paved roadway, which is further proposed as part of such subdivision, with a closed drainage system directed to a treatment swale, would further reduce TSS counts to DEP acceptable levels. From a further review of all documentation, I believe it is fairly clear that the Conservation Commission is allowed to permit the construction and maintenance of a new roadway or driveway, of minimum, legal and practicable width, acceptable to the Planning Board dimensional standards "where no alternate means of access from an existing public or private way to an upland area of the same ownership is available." As has been previously mentioned herein, the property has been held in the same owner since 1950, and thus was in existence prior to the effective date of October 24, 1994. When reviewing such matters in its entirety, and reviewing the burden of proof requirements, whereby an applicant must prove by a preponderance of the evidence that the work proposed in the application shall not have an unacceptable significant and/or cumulative affect upon the wetland values protected by this Bylaw, I would contend that a variance would not be required. Furthermore, since the access road in existence would be acceptable as a single lot, it should not.lose its applicability and availability for subdivision purposes. It is important to note in reviewing the Zoning Bylaws that "the Special Permit Granting Authority (SPGA) under this Bylaw shall be the Planning Board." Such Bylaw was clearly intended to allow the Planning Board and not the Zoning Board of Appeals to make a determination with regards to proposed subdivisions, and I would suggest that Town Counsel review that in detail. I think it useful to note, from my review of the title, that a subdivision was formerly approved by the Planning Board in March, 1957 for the site, with the plan recorded at the Essex North District Registry of Deeds, on April 2, 1957, listed as Plan # 3442. The access points remain the same as proposed in the current plan, which clearly evidences the intent to use such access points as a means of entering the property for subdivision purposes. While I must clearly acknowledge that the Planning Board is not required to accept a new subdivision based upon one that existed a number of years ago, I think it is important in making a determination of the use of the site that the clear intent and purposes of such subdivision was to use the existing access points. The owner who originally intended to proceed with the subdivision was Lantern Corporation which, I understand, involves the Smith Family who are the current owners of the property, with the previous subdivision formerly known as "Appleton Estates" It is my sole intent and desire to expedite the subdivision process and allow for uses that are clearly spelled out and allowed under the rules and regulations of the Town of North Andover. MPG Realty Corp. is desirous of completing the plans for submittal of its Notice of Intent, and, as well, prepare a definitive set of plans for submittal to the Planning Board, and I would appreciate your having town counsel formulate an opinion, in light of the within submittal. Very truly yours, ' Michael A. Gerstein MAG/If cc: MPG Realty Corp. Elmer Pease LEONARD KOPELMAN DONALD G. PAICC ELIZABETH A. LANE JOYCE FRANK JOHN W. GIORGIO BARBARA J. GAIN? ANOIIC JOEL B. BARO EVERETT J. MAROER PATRICK J. COSTELLO JOSEPH L. TEHAN. JR ANNE -MARIE M. HYLAND THERESA M. DOWDY WILLIAM NEW10 111 DEBORAH A. ELIAyON JEANNE S. MCKNIUHr JUDITH C. CUTLER RICHARD BOWEN KOPELMAN AND PAIGE, P. C. ATTORNEYS AT LAW 31 ST. JAMES AVENUE BOSTON. MASSACHUSETTS 02116-4102 BOSTON OFFICE (6171 566.0007 PAS (4127) 464.8726 NORTHAMPTON OPFICE 14231 585.6632 WORCESTER OFFICE 16061 752-0203 November 21, 1997 BY FACSIMILE - (978) 588-9542 1vls. Kathleen Bradley Colwell Town Planner North Andover Town Hall KATHLEEN M. O'OONNELL DAVIO J. DONESKI BANORA CHARTON ILANA M OUIRK JOHN RICHARD HUCXSAM. JR. SUSAN M CALLAHAN BRIAN W. RILEY JOHN J. KENNEY. JR. ROBERT PATTEN MARY L 410AGIC KATHL[CN C. CONNOLLY MICHCLC C. RANOAZZO PETER J. FEUERBACH MARY JO HARRIS THOMAS W. MCENANEY JONATHAN M..SILVERSTEIN TIMOTHY J. ERVIN KATHARINE 1. GORES CHRISTOPHER J. POLLART Z NOV 2 41997 !� 120 Main Street . 'INNING a,!nQn North Andover, MA 01845 Re: Berrington Estates Subdivision - Interpretation of Watershed Protection District Bvlaw and related Questions Dear Ms. Colwell: You have requested an opinion regarding several issu--s raised by the applicant's attorney in regard to the proposed Berrington Estates subdivision. It is my understanding that, in particular, you seek clarification as to: 1) whether the Watershed Protection District Bylaw (the "Bylaw") affects this proposed subdivision; 2) whether the applicant, if required to obtain a variance, should obtain that variance From the Planning Board or from the Zoning Board of Appeals; and 3) what role the Conservation Commission will play with respect to this proposed subdivision prucess. Briefly, in response to these questions, it is my opinion that: 1) the Watershed Protection District Bylaw xvill affect any lot(s) the applicant records after October 24, 1994, the effective date of the Byiaw; 2) if the applicant is required to obtain a variance front any part of the Zoning Bylaw, including the Watershed Protection District Bylaw, the Zoning Board of Appeals will he the proper authority to issue such a variance; and 3) the Conservation Commission will be responsible for enforcing the Tuwn•s general (i.e., nun-zoning)u'etlands Bylaw and the State Wetlands Protection Act, but not the Watershed Protection District Bylaw which will be enforced by the Planning Board. PRINTED ON RECYCLED PAPER 70-d zvg6 909 209 •naa -w07-Aanopuy q -a ION dI£=ZT 86-ZT-ue KOPELMAN AND PAIGE. P.C. Ms. Kathleen Bradley Colwell Town Planncr November 21, 1997 Page 2 ARnlication ot*the October. 1991 Watershed Protection District Bylaw The facts as I understand them are as follows. The applicant seeks to subdivide a parcel of property which lie has owned since prior to the effective date of the Watershed Protection District Bylaw. However, before lie actually obtains subdivision approval for this property, he is proposing to build a road into the center of it; he intends to later use this road as the access into the subdivision. This proposed road ME undisputedly cress a non -disturbance buffer zone ass defined in the Watershed Protection District Bylaw. He hopes that by building the road prior to completing the subdivision process, he will avoid the Watershed Protection District Bylaw . requirements because the road will have been built on a lot which was in existence before October 24, 1994. In my opinion, the applicant's property will not be subject to the restrictions of the Watershed Protection District By -lave until the applicant records or registers the property as consisting of new lots. That is, in my opinion the Bylaw requirements only apply to those lots recorded or registered after October 24, 1994. Since the applicant's lot was in existence before that date, it is my opinion that it is not subject to the Bylaw. Furthermore, in my opinion, merely proposing to subdivide: the lot does not trigger the restrictions under the Bylaw. In my opinion, the language of the Bylaw clearly states that it is applicable only to those lots recorded and jcListereel after October 24, 1997. Theref'ure, in my opinion, until the applicant records o registers new lots of the subdivision, the Bylaw does not apply. As a result, whether the Bylaw will apply or not in this particular case depends largely on how the applicant chooses to proceed. it is possible that the applicant could complete the subdivision process, including construction of the road, without recording any of the lots, i.e., by covenanting to secure the cottsuyuction of the subdivision ruad, thereby avoiding the necessity of recording the lots until after construction is complete. On the other hand, it is possible he will .record the lots prior to the completion of construction, (after posting a bond or due to another circumstance), thereby trigacring the Bylaw requireinents, in my opinion. In summary, it is my opinion that once the new lots arc recorded, the Bylaw will become applicable, but work performed un the: existing, "unsubdivided" lot will not be subject to the Bylaw. Variance Procedure_ With respect to the second question, it is my opinion that if the applicant should Xquirc a variance 1runl the provisions ul*the.Watershed Protection District Bylaw, he mast obtain .such a variance tTorn the 7onin� Board of �pPeals. In a letter dated July 23, 1997, the applicant's attorney seems to indicate lie believes the Planning nning Board would be the proper authority from which to obtain a variance. In my opinion, this position is mistaken. While it is true that pursuant to the Watershed Protection District Bylaw, the Placttttttg Board is cuip) vered to hear and act on special permit requests. nothing alters the exclusive authority given to the 7.oning Board of Appeals to hear and decide variance requests. �:o"d Zb56 p89 SOS 'nan .wOn _4an0puy q-L.AoN dr£=ZL KOPELMAN AND PAIGE. P.C. Ms. Kathleen Bradley Colwell Town Planner November 21, 1997 Page 3 The third question appears to ask what role and authority the Conservation Commission has with respect to processing this subdivision request. In my opinion, the Conservation Commission will conduct a review which is separate from that of the Planning Board and Zoning Board of Appeals. The Conservation Commission will review the applicant's plan to ensure contpliauc:e with the Tuwn's Wetlands Bylaw and State Wetlands Protection Act The Planning Board (and Zoning Board ofAppeals,'if necessary) will review the pian with respect to the Watershed Protection District Bylaw and all other applicable zoning and subdivision provisions, rules and regulations. Should you have further questions regarding this matter, please do not hesitate to contact me. Very truly yours, Joel B. Bard JEBIKAWatg cc: Town Manager Board of Selectmen 3G818:nand19999 ��.c o00 one - nan - wo7-Aanopud gl-AGN dZ£ = Z I 96 - Z i -u'e[ ALTERNATIVE ACCESS REPORT October 27, 1997 Location: 1 Dale Street, North Andover, MA Purpose Access for a proposed 7 lot Subdivision -Berrington Place I have been asked by the applicant, MPG Realty Corp., of 11 Old Boston Road, Tewksbury, MA 01876 to prepare a report on the feasibility of an alternative access to the subject property proposed as a 7 lot subdivision known as Berrington Place. This request is pursuant to a review comment made several months ago by Ms. Kathleen Colwell, the Planning Director of the Town of North Andover to Mr. Kenneth Grandstaff.. Prior to this report, I have previously submitted a brief to the Town of North Andover reflecting my view that an alternative access is not necessary pursuant to state statute and Town of North Andover regulations. Further, my brief was supported by the applicant's attorneys from the law offices of Philips, Gerstein, Holber & Channen of 25 Kenoza Avenue, Haverhill MA 01830. These briefs are currently in the Town's possession. Having said that, this report will only serve to address the special requirements of the zoning regulations Section 4.136 Watershed Protection District, Subsection 4.c.iv. "proof that there is no reasonable alternative location outside the non -disturbance and/or non discharged buffer zones, whichever is applicable, for any discharge, structure, or activity, associated with the purposed proposed use to occur". The following three properties to the northwesterly boundary of the subject parcel owned by Johaine Realty Trust, Barbara Grasso and James Rice, are exclusive executive homes with outside amenities such as pools and tennis courts. Along the northern boundary are two other parcels owned by Connecticut Financial, enc. and the Town of North Andover (town farm) in which the common boundaries are located in standing water. The Morley property to the east of the subject site is bounded by a common wetland area as well. The following homes along the southerly boundary to the Dale Street, Appleton intersection, all abut the subject property, however, have wetlands that prevent access to the subject property. These parcels are owned by Harold Morley, Richard O'Toole, Frederick White, Michael and Virginia Bubar, Christlne Melvin, Edward and Jacqueline Morgan, Jan and Stephanie Bajan, Agnes E. McCallister, Daniel and Joan Takesian, Gregory E. and Kathleen Garbick and R. Ashton Smith. All of these properties are bounded by wetlands and the accompanying watershed setbacks. Along Dale Street to the northwest, which is a one-way street going east, is the R. Ashton Smith and the Donald and Maria Hillner properties. These properties have single family residential homes and have wetlands or wetland setback restrictions. The sole property to the west of the subject site is owned by Joseph and Carol O'Connell. Their home is located to the southeasterly portion of their property along the southwesterly boundary of the subject parcel. Their home is in such a location as to prevent reasonable access between the O'Connell and Hillner homes. In addressing the Reasonable Alternative Access issue, I spoke with Mr. O'Connell and determined that though the property was not on the market, he would be willing to sell the parcel for an asking price of $250,000.00 dollars. This is even after he commented that his home is only worth $125,000.00 to $150,000.00 dollars. He would not entertain a roadway going in between his home and the Hillner home. In a discussion with Curt Young of Wetlands Preservation, Inc. (WPI), he determined that there are wetlands along the O'Connell left front boundary as well as in the central and northwesterly sections of the property. This would prevent any access from further west. In addition to the price of the property being extremely unreasonable, there are two other more important issues that deal with any access from this location. The first issue is access at a common point that becomes a safety hazard. The roadway location to Dale Street would be at the end of a curve that has neither the site stopping distance (SSD) or reasonable intersection site distance (ISD) for traffic having to enter Dale Street and turn left. As I had mentioned before, all traffic entering on this portion of Dale Street must turn left because of its one-way direction. The second issue is the more likely impact of a roadway being wedged between and close to, the O'Connell and Hillner homes. This would result in a likely decrease in their property values. For these reasons, this property as well as any of the others abutting parcels are not reasonable accesses to the subject parcel. In closing, the subject site has two existing means of egress. Both were created when the property was previously subdivided. Both access' ire remaining just that, access' to the main portion of the property. Whether it be a driveway, private or public roadway, access to the uplands to the northwest and central portion of the property can be gained from the westerly access currently shown on plans submitted to theTown. Therefore, it is my opinion that no reasonable alternative access can be gained to the property and should not be considered in dealing with the briefs prepared by me or the applicant's attorney. Respectfully submitted, Elmer A. Pease, II CPM, EA cc: Mike Gerstein, Esq. Attachments EAP/sp aarnoand.doc 3 � DJK Two Dundee Park. Suite 301 Andover. MA 01810-3725 Office: 508-474-1994 Fax: 508-474-1778 December 30, 1997 Mr. Elmer A. Pease PD Associates, LLC 704 Londonderry Turnpike Auburn, NH 03032 RE: Berrington Place Dale Street North Andover, MA Dear Elmer: Dermot J. Kelly Associates. Inc. Traffic Engineering/Transportation Planning As per your request, DJK Associates, Inc. has evaluated an alternative driveway location to the proposed Berrington Place 7 -lot residential subdivision. The current proposed driveway location is opposite #125 and #133 Dale Street. The alternative drive would be approximately 500 feet to west of the current proposed driveway location. ' Adjacent to the current proposed site drive location, Dale Street is relatively tangent and level. At the alternative driveway location, Dale Street exhibits a large radius curve, which could 1 negatively affect the available sight distance. It is generally undesirable to locate a new intersection on a section of roadway that exhibits a large radius curve, especially when an available tangent section of roadway exists. Should you have any additional questions, commdnts and/or if you require any additional information please do not hesitate to call me. ISincerely, DJK /Assoicates, Inc. I, Dermot Kelly, P. E. DJ K/a h cc: File \\4770\c\DJK\JOB\355-Lt02 Elmer Pease.doc NEIGHBORHOOD MAP OF DALE STREET � 4 Nu T. r■ �"pie �� R '�� �y ��� � r+. .1P°�°Y a� .Y r� st?� A{"-�5'ia7; n,SeJ4 p'� �h%1��L:. �s.... �_.. ,,g►�. a� ��{ '?�•. jR �. fir, �c 41. " ev 1% : r"A <DeMutb - 2 Markers, LenFP "3 miles, 3000 feel Campbel Forest - 042' 38' 18.9' N, 07103' 2 Beff irxjton Place - 042" 40' 53.1' N, 071.05' CopyrigN (C) 1998. EW#Wisiort Inc. .7 ^ t � `- ,.• za,�`�-1� _�--�--z�' � �� 1 Com`,) -- _ W_wr• .. 4 Q .. . cu I � � I 1j. •� l i� .7 Herbert P. Phillips,. PC. LAW OFFICES OF Michael A. Gersten //�� /�17 Stuart M. Holber (Plix j�7 , / � j (i f i, Hofer & Ch"en Russell S. Channen t LIUiJJ NIJc�I.LI/ Jane M. Owens Triano Ronald N. Beauregard 25 Kenoza Avenue ill Haverhill, MA 01830 E!k Kevin P Rauseo TeL (978) 374-1131 I(800) 457-6912 ■ Fax: (978) 372-3086 of Counsel. John T. pollano Gerald M. Lewis October 20, 1997 William J. Scott s Director of Community Develop;Ment and Services 146 Main Street North Andover, MA 01845 Re: Berrington Estates Subdivision Dale and Appleton Streets North Andover, Massachusetts Dear Mr. Scott: I had previously written to you on July 23, 1997 stating the position of my client, MPG Realty Corp., and its desire to proceed with the above referenced subdivision. I am enclosing a further copy of such correspondence and am requesting again that Town Counsel issue an opinion, consistent with the position I have taken, that no further access points to the above property would be necessary. E .. I would be more than happy to contact Town Counsel directly, although I am requesting that you proceed as quickly as possible to obtain such opinion so that my client can proceed in its endeavors. Very-trWy yours, i Michael A. Gerstein MAG/lf cc: MPG Realty Corp. Elmer Pease Kathleen Bradley Colwell ~ All attorneys admitted in Massachusetts. Holber, Beauregard and Rauseo admitted also in New Hampshire. Holber admitted also in Maine. Other office: 32 Saco Avenue, P.O. Box W, Old orchard, ME 04064 Reply to Haverhill office only Y" Herbert P. Phillips. PC. //�7p►� �LAAWryOFICCES OF /�Q� C/Mwn Michael A. Gersten T/ ('' N efs U v? / I oa�V & Stuart M. Holber v Russell S. Channen Jane M. Owens Triano _ 25 Kenoza Avenue ■ Haverhill, MA 01830 ■ Tel. (508) 374-1131 ■ Fax (508) 372-3086 Ronald N. Beauregard Kevin P. Rauseo of Counsel: John T. Pollano �; QJU23, 1997 William J. Scott Director of Community Development and Services Town of North Andover 146 Main Street North Andover, MA 01845 Re: "Smith Property" Dale and Appleton Streets North Andover, Massachusetts Dear Mr. Scott: Please be informed this office represents MPG Realty Corp. relative to its desire to subdivide the above property. I have received a copy of the letter of Kathleen Bradley Colwell, Town Planner, dated April 24, 1997 relative to her position that my client would need another access point to the property and, if not, would require a variance from the Zoning Board of Appeals. I have had occasion to review my client's file, the Town of North Andover Zoning Bylaws, the Wetlands Protection Bylaw, and the Wetlands Regulations for the Town of North Andover. I have also examined the title to the property, and I am of the belief that town counsel will concur that a variance will not be required. I am listing herewith my reasons and would request you submit this letter to Town counsel for his/her review and comments. It is my client's further hope and desire to proceed with the subdivision in an expeditious manner, and I believe town counsel should be involved to address these concerns currently. Pursuant to the provisions of the Zoning By Laws, and, in particular, Section 4.136 dealing with "Watershed Protection District", it is stated.under 4.136.2.f, "the provisions relating to the _ establishment of the Conservation Zone and the enlargement of the non -disturbance zone and the non -disturbance zones shall only apply to lots recorded and registered after the date of the enactment of this amendment." (October 24; 1994). Please be aware that the Smith Property in question was purchased March 25, 1960 as recorded at Book 912, Page 187 of the Essex North District Registry of Deeds, a copy of which deed I am enclosing herewith. It is certainly acknowledged that the North Andover Conservation Commission is empowered by the Wetlands Protection Bylaw to preserve and protect the wetland resource areas, and to adopt All attorneys admitted in Massachusetts. G� Holber and Beauregard admitted also in New Hampshire. �y Orders of Conditions which are necessary to regulate its responsibility. The Conservation 3 Commission does have the authority to waive strict compliance with its regulations, when in its judgment, such action wduld be consistent with the intent and purposes of the Bylaw. I certainly acknowledge that my client, as an applicant, has the burden of proving that the grant of a waiver is consistent with the intent and purposes of the Bylaw. I wish to further acknowledge that the proposed subdivision and its current access points are in the non -disturbance buffer zone, although the following uses shall be allowed within such zone only by Special Permit, issued pursuant to Section 4 of the Watershed Protection District Bylaw. 1 Any activities which cause a change in topography or grade; 2. Vegetation removal or cutting, other than in connection with agriculture uses or maintenance of a landscape area. 5. Any surface or subsurface discharge, including but not limited to storm water runoff, drainage of any roadway that is maintained by the Division. of Public Works or any private association; outlets of all drainage swales; outlets of all detention ponds. You should be aware that the current roadway that is used and would be proposed to be used to access the property has a width of between thirty (30) and forty (40) feet. Correspondingly, the shoulders of the roadway are thirty eight (38) to fifty (50) feet. The slopes therein are currently eroding and partially treated, and the degradation of the adjoining or abutting wetlands are affected during heavy rains by the sediment from the soil in the slopes. Based upon such situation, the improvement to the roadway would greatly reduce the erosion and would serve to better direct and treat any storm water runoff. The addition of a paved roadway, which is further proposed as part of such subdivision, with a closed drainage system directed to a treatment Swale, would further reduce TSS counts to DEP acceptable levels. From a further review of all documentation, I believe it is fairly clear that the Conservation Commission is allowed to permit the construction and maintenance of a new roadway or driveway, of minimum, legal and practicable width, acceptable to the Planning Board dimensional standards "where no alternate means of access from &fexisting public or private way to an upland area of the same ownership is available." As has been previously mentioned herein, the property has been held in the same owner since 1950, and thus was in existence prior to the effective date of October 24, 1994. When reviewing such matters in its entirety, and reviewing the burden of proof requirements, whereby an applicant must prove by a preponderance of the evidence that the work proposed in the application shall not. Pave am unacceptable significant and/or cumulative affect upon the wetland values protected by this Bylaw, I would contend that a variance would not be required. Furthermore, since tyle access road in existence would be acceptable as a single lot, it should not lose its applicability and availability for subdivision purposes. It is important to note in reviewing the Zoning Bylaws that "the Special Permit Granting Authority (SPGR) under this Bylaw shall be the Planning Board." Such Bylaw was clearly intended to allow the Planning Board and not -the Zoning Board of Appeals to make a determination with regards to proposed subdivisions, and I would suggest that Town Counsel review that in detail. /0 I think it useful to note, from my review of the title, that a subdivision was formerly approved by the Planning Board in March, 1957 for the site, with the plan recorded at the Essex North District ril 2, 1957, listed as Plan # 3442. The access points remain the same as Registry of Deeds, on A P in the current plan, which clearly evidences the intent to use such access points as a means of entering the property for subdivision purposes. While I must clearly acknowledge that the Plaruuns Board is not required to accept a new subdivision based upon one that existed a number of years ago. I think it is important in making a determination of the use of the site that the clear intent and purposes of such subdivision was to use the existing access points. The owner who originally intended to proceed with the subdivision was Lantern Corporation which. I understand, involves the Smith Family who are the current owners of the property, with the previous subdivision formerly known as "Appleton Estates" It is my sole intent and desire to expedite the subdivision process and allow for uses that are clearly spelled out and allowed under the rules and regulations of the Town of North Andover. MPG Realty Corp. is desirous of completing the plans for submittal of its Notice of Intent, and, as well, prepare a definitive set of plans for submittal to the Planning Board, and I would appreciate your having town counsel formulate an opinion, in light of the within submittal. cc: MPG Realty Corp. Elmer Pease Very truly yours, ichael A. Gerstein DALE STREET - COMPLIANCE BRIEF & FINDING I have carefully reviewed the Town of North Andover's Zoning Bylaws -Reprinted 1996 and their Wetlands Protection Bylaw and Wetlands Regulations. 1 researched those sections of the Bylaws that pertain to the Buffer Zone distances and requirements and their interaction with our proposed development. I reviewed several key sections that have, or could have some bearing on the roadway that is proposed for the 7 lot residential subdivision. The following excerpts were taken from the Bylaws and are the ones that are at the heart of this brief. I have also included a copy of the deed to the property furnished by the attorney who completed the title abstract. This deed shows that the property was a lot of record as of March 25, 1960. This date, is of course, critical in the determination of whether or not certain provisions of the Regulations and Bylaws affect this property. After careful review of the Bylaws and Regulations, excerpted below and highlighted, it is my opinion that the roadway we propose in its current location does not require the submittal or finding of the Zoning Board of Appeals. Further, it is my opinion, that the Conservation Commission has the authority and right to grant a waiver to allow the roadway pursuant to Section I.E. Waivers From Regulations -Wetlands Regulations, and the Planning Board to grant a Special Permit pursuant to the finding that the property is a lot created prior to October 24, 1994 and pursuant to Section 4.136.3.c.i and 4.136.c.ii of the Zoning Bylaws -Watershed Protection District, Town of North Andover Zoning Bylaw -Reprinted 1996. Pursuant to Section 4.136. Ld of the Watershed Protection District, the Special Permit Granting Authority (SPGA) shall be the Planning Board. The Conservation Commission has the jurisdiction and authority pursuant to Section 178.2 and 178.6 of the Wetlands Bylaw and Section I.E of the Wetlands Regulations. This finding supports the fact that the Planning Board and Conservation Commission have the right and the authority to review and grant approval on this subdivision without having to -acquire a variance from the Zoning Board of Appeals. WETLANDS PROTECTION BYLAW Section 178.1 Purpose. The purpose of this Bylaw is to preserve and protect the wetland resource areas (as specified in Section 2) and buffer zones of the Town of North Andover by regulations of, and control of, activities (more particularly described in Section 2 below) deemed by the Conservation Commission (the "Commission") to have significant or cumulatively detrimental effect upon the following interests and values, including but not limited to: public or private water supply; groundwater; the prevention and control of flooding, erosion, sedimentation, storm damage, and/or pollution; protection of fisheries, wildlife, wildlife habitat, and recreation. flection 178 9 Rules and Regulations. The Commission shall be empoivered to adopt Rules and Regulations to govern its affairs, including, but not limited to, fees, definitions, use of consultants, and such other information which it deems necessary to discharge its responsibility. After due notice and public hearing, the Commission may promulgate such rules and regulations to effectuate the purposes of this Bylaw, by a majority of the duly appointed members. WETLANDS REGULATIONS Section I.B Purpose.The purpose of the North Andover Wetlands Protection Bylaw (hereafter referred to as the "Bylaw") is clearly stated in the Bylaw. These Regulations are promulgated to ensure fairness, to create a uniformity of process and to clarify and define the provisions to the Bylaw, administered by the North Andover Conservation Commission, hereafter call the "Commission". Wetlands contribute to a number of public interests and are therefore protected by the Bylaw. The Bylaw identifies three additional public interests not recognized by the Act. These are: "prevention of erosion and sedimentation", "wildlife" and "recreation". Any permit issued under the Bylaw and Regulations must therefore contribute to these public interests. Section I.E Waivers from Regulations. Strict compliance with these Regulations may be waived when, in the judgment of the Commission, such action is consistent with the intent and purpose of the Bylaws and these Regulations. the applicant shall have the burden of proof that the granting of the waiver is consistent with the intent and purpose of the Bylaws and these Regulations. The Commission shall act on the request and shall provide to the applicant, either by certified mail or hand delivery, its written decision. See Appendix 2 for a Waiver Request Form. Section II Definitions. 2. The term "alter" shall include without limitation, the following actions when undertaken in areas subject to the Bylaw: a) changing of pre-existing drainage=eharacteristics, sedimentation patterns, flow patterns or flood retention characteristics; b) placement of fill, excavation or regrading; C) destruction of plant life, including cutting and removing of trees or shrubs; d) changing water temperature, biochemical oxygen demand or other physical or chemical characteristics of water; e) any activities, changes or work which pollute or cause displacement of any body of water or groundwater; f) any activities, changes or work which cause alteration of wildlife habitat. 13 ryt 'M 3 The term "burden of proof" means the applicant shall have the burden of proving by a preponderance of credible evidence that the work proposed in the applicatioai shall h . ificant anrUor cumulative effect upon the wetland values not have an unacceptable sign ide adequate evidence that the work proposed in protected by this Bylaw. Failure to prov the application shall not have an unacceptable significant and/or cumulative effect upon the wetland values protected by this Bylaw shall be sufficient cause for the Commission to deny a permit or grant a permit with conditions. Section VI Performance Standards and Supplement Documentation A. Flood Standards. B. Wildlife Habitat C. Stormwater Management D. Erosion Control E. Wetland Replacement or Restoration E.3. The Commission may permit the construction and maintenance of a new roadway or driveway of minimum legal and practical width acceptable to Planning Board Dimensional standards, where no alternative means of access from an existing public or private way to an upland area of the same owner is available. Replication of altered wetlands resources may be required by the Commission to minimize adverse impacts and - to protect the interests identified in the Bylaw. WATERSHED PROTECTION DISTRICT Section 4.136 2.f The provisions relating to the establishment of the Conservation Zone and the enlargement of the Non -Disturbance Zones shall only apply to lots of recorded or registered after the date of the enactment of this amendment (October 24, 1994). (1994/1 STM). Table 1 - Lots created after October 24, 1994 Conservation From Annual High Water Mark of Lake Cochichewick out to From Edge of All Wetland Resource Areas Within the Watershed District out to 150' 75' Non - Disturbance 250' 150' Non - Discharge 400' X11 l� Table 2 - Lots created on or prior to October 24, 1994 Non - From Annual High Water Mark of Lake Cochichewick out to From Edge of All Wetland Resource Areas Within the Watershed District out to Non -Disturbance Buffer Zone Disturbance 250' 100' Non - Discharge 325' 325' There shall exist a Non -Disturbance Buffer Zone within the Watershed Protection District which shall consist of all land areas located between one hundred fifty ............. i. Allowed Uses: All of the Allowed Uses listed in Section 3(a)i of this Watershed Protection District Bylaw are allowed in the Non -Disturbance Zone except as noted below. ii. Uses Allowed by Special Permit: The following uses shall be allowed within the Non -Disturbance Buffer Zone only by Special Permit issued pursuant to Section 4 of this Watershed Protection District Bylaw. (I) Any activities which cause a change fit topography or grade. (2) Vegetation removal or cutting, other than in connection with agriculture uses or maintenance of a landscape area. (5) Any surface or sub -surface discharge, including but not limited to, stormwater runoff; drainage of any roadway that is maintained by the Division of Public Works or any private association; outlets of all drainage swales; outlets of all detention ponds. The current roadway that is used to access the property has a width of between 30- 40 feet. The shoulders of the roadway are 38-50+ feet. The slopes are currently eroding and partially treated. The degradation of the adjoining or abutting wetlands are affected during heavy rains by the sediment from the soil on the slopes. The improvement to the roadway would greatly reduce the erosion, and better channel and treat stormwater runoff. The addition of a paved roadway, with a closed drainage system directed to a treatment Swale would reduce TSS counts to DEP acceptable levels. fs •� r �� ^( h v ►a ,tom , nYi �� •' 1 /\yam.' '� _ J f_ r I -! ^-!' _ I - x t I qtr � .�.• 1, `` � I "w•'�^st�y ...J jr •. .r1T` r-il + 'T�. �� ' � _ ^V'�1',• -. �{ Vk; ��? Atm ,. IR _ . L. l i .,�•. :rc.� � • •.70 } A • - Town of North Andover NaRTN OFFICE OF - < • �tio COMMUNITY DEVELOPMENT AND SERVICES F?°=,"•' p 30 School Street i » North Andover, Massachusetts 01845 WILLIAM J. SCOTT CHus t Director NOTICE OF DECISION Any appeal shall be filled' within (20) days after the date of filling this Notice in the Office of the Town Clerk. Date April 23, 1998 Date of Hearing 3/17/98, 4/7/98 & 4/21/98 Petition of MPG Realty Corporation Premises affected Lnt 1 na1P s+-rt-4--t- Referring to the above petition for a special permit from the requirements of the north Andover zoning Bylaw SPc t- inn 4 1 -i6 (h) (� Watershed Protection District so as to allow to build a roadway, waterline and detention basins within the non discharge, non disturbance and.conservation buffer zones. After a public hearing given on the above date, the Planning Board voted to APPROVE the Watershed Special Permit based upon the following conditions: CC: Director of Public Works Building Inspector Natural Resource/Land Use Planner Health Sanitarian Assessors Police Chief Fire Chief Applicant Engineer Towns Outside Consultant File Interested Parties Signed EL6J C_t_ Richard S.Rowen, Chairman Alison Lescarbeau, V. Chairman John Simons, Clerk Richard Nardella Joseph V. Mahoney Planning Board CONSERVATION - (978) 688 9530 - HEALTH - (973) 688-9540 - PLANNING - (978) 688-9535 *BUILDING OFFICE - (978) 688-9545 - *ZONING BOARD OF APPEALS - (973) 688-9541 - `146 MAIN STREET 91 Town of North Andover OFFICE OF COMMUNITY DEVELOPMENT AND SERVICES WILLIAM J. SCOTT Director April 23, 1998 Ms. Joyce Bradshaw Town Clerk 120 Main Street North Andover, MA 01845 30 School Street North Andover, Massachusetts 018.15 Re: Watershed Special Permit -Lot 1 Dale Street Dear Ms. Bradshaw, Of NORTN � 9 The North Andover Planning Board held a public hearing on Tuesday evening March 17, 1998 at 7:30 p.m. in the Department of Public Works, upon the application of Lot 1 Dale Street, North Andover, Ma 01845 to request a special permit under Section 1.436 (3) (b) (c) (d) of the Watershed Protection District of the North Andover Zoning Bylaw. The legal notice was properly advertised in the North Andover Citizen on January 28 & February 4, 1998 and all parties of interest were duly notified. The following members were present: Richard Rowen, Chairman, Alison Lescarbeau, Vice Chairman, John Simons, Clerk, Joseph V. Mahoney and Richard Nardella. The petitioner was requesting a special permit to allow to construct a roadway, waterline and detention basins within the non discharge, non disturbance and conservation buffer zones. The premises affected is Lot 1 Dale Street in the Residential - 1 (R-1) Zoning District and the Watershed Protection District. Elmer Pease and Eric Heyland of Allen & Major Associates were present to represent Lot 1 Dale Street. Mr. Pease highlighted the boundaries on the plan Mr. Pease stated that they moved the detention basin outside of the 75' conservation zone. Ms. Colwell stated that there is deadline for the subdivision for the April 7, 1998 meeting. Mr. Rowen stated that we can't approve the subdivision with out the special permit. Ms. Colwell stated that we still have not received DPW's comments. Mr. Rowen asked Ms. Colwell if they had any outstanding issues that she knows of. Ms. Colwell stated that there were not any for the subdivision. Kerry McCollister of 206 Dale Street, had concerns with the detention basin and culverts discharging onto his property from the Bear Hill subdivison. An abutter of 128 Dale Street had concerns with the excavation and the removal of the culverts. BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 Berrington Place Special Permit - Watershed Protection District The Planning Board makes the following findings regarding the application of MPG Realty Corporation, 11 Old Boston Road, Tewksbury, MA 01876, dated February 20,1998, requesting a Special Permit under Section 4.136 of the Zoning By -Law of the North Andover Zoning Bylaw to allow activities which cause a change in topography and grade, vegetation removal, and surface and subsurface discharge of storm water runoff within the Non -Disturbance Zone and surface and sub- surface discharge of stormwater within the Non -Discharge Zone of the Watershed Protection District. FINDINGS OF FACT: In accordance with 4.136(4) the Planning Board makes the finding that the intent of the Bylaw, as well as its specific criteria, are met: Specifically the Planning Board finds: 1. That as a result of the proposed construction in conjunction with other uses nearby, there will not be any significant degradation of the quality or quantity of water in or entering Lake Cochichewick. The Planning Board bases its findings on the following facts: a) All of the homes will be connected to the Town sewer system; b) storm water mitigation will catch and treat all storm water drainage; C) the limit of clearing is restricted to the minimum necessary to construct the driveway; d) a construction phasing plan and emergency response plan are required. e) All of the proposed dwellings are located entirely outside of the non -disturbance zone. 2. that there is no reasonable alternative location outside the Non -Discharge Buffer Zone for any discharge, structure or activity, associated with the proposed driveway construction as the lot is located within the Non -Discharge Zone. In accordance with Section 10.31 of the North Andover Zoning Bylaw, the Planning Board makes the following findings: A. The specific site is an appropriate -location for the proposed use as all feasible stormwater and erosion controls have been placed on the site; B. The use will not adversely affect the neighborhood as the lot is located in a residential zone; C. There will be no nuisance or serious hazard to vehicles or pedestrians; 11 D. Adequate and appropriate facilities are provided for the proper operation of the proposed use; E. 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 Special Permit based upon the following conditions: SPECIAL CONDITIONS: 1. This decision must be filed with the North Essex Registry of Deeds. The following information is included as part of this decision: a) Plans entitled: "Definitive Plan of Land — Berington Place", ten sheets dated January 16, 1998 List revised 3/3/98. Prepared by Allen & Major, Woburn, MA b) Reports entitled: i) "Statement of Environmental and Community Impact", dated January 15, 1998. ii) "Water Quality and Best Management Practices (BMP) Evaluation", Berrington Place, Dale Street, North Andover, Massachusetts, dated July 14. 1997, revised October 8, 1997. C) The Town Planner shall approve any changes made to these plans. Any changes deemed substantial by the Town Planner would require a public hearing and modification by the Planning Board. 2. Prior to any work on site: a) The limit of clearing line on each lot must be marked in the field with yellow caution tape and must be reviewed and approved by the Town Planner. b) A performance guarantee of ten thousand ($10,000) dollars 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. C) All erosion control measures as shown on the plan must be in place and reviewed by the Town Planner. d) The site shall have received all necessary permits and approvals from the North 2 Mr. Nardella asked how big the culverts are now. Mr. Pease stated that they are 12". Dave Rand showed the Board pictures. Mr. Nardella asked what DPW's comments are. Ms. Colwell went over DPW's concerns. Mr. Nardella asked if DPW has responded to any concerns of the abutters. Mr. McCollister stated that he has spoken to Bill Hmurciak, and he is unaware of the lateral culverts. Mr. McCollister stated that he doesn't understand how Xle can put the waterline under the culverts. Mr. McCollister also stated that they were told the runoff from Bear Hill would not be a problem, it seems to him that part of the Boards job is to protect the existing homeowners. NIr. Rowen stated that we don't have to make the applicants solve the existing problems. Dan Takesian of 198 Dale Street, stated that if you put up homes then the water will have no place to go. We already have Bear Hill's water runoff. Mr. Takesian stated that their backyards are filled with water up to their knees and with any serious rain they won't have a backyard. Mr. Pease stated that we have already gone through all this with ConCom and have done several tests. Mr. Pease stated that Mr. Chessia has reviewed the Storm Water Management and we have addressed every concern they had. Mr. Pease stated that any other concerns with Planning, there isn't anything we can do. The Beaver Pond is downstream. Sandra Timmons of 205 Dale Street, stated that when Bear Hill was put in there was supposed to be a dry retention area put in and now the baffle pipe is gone. Dave Rand of 280 Dale Street, stated that he has looked for the plans for the dry retention area's for Bear Hill but, can't find them. This would have been built for 100 year storm and if the pipe was there it would hold up the water but, I believe a homeowner removed it. Mr. Rowen asked if a homeowner definitely removed the pipe. Mr. Rand stated that he can't say that for sure. Mr. Rowen stated that the applicants are required to ensure they don't create problems but they are not responsible for curing the Bear Hill problem. Mr. Simons stated that the assumptions may not be correct because your not taking all the potential areas to a count. Mr. Pease stated that we have answered all these same questions. Mr. Pease stated that they have to make sure that the water drains on their property correctly. Mr. Nardella asked Ms. Colwell if Mr. Chessia has any more comments on this parcel. Ms. Colwell stated that there were no more comments for Storm Water Management and these same issues were discussed at the ConCom meetings. Dave Rand of 280 Dale Street, stated that in one weeks time the beavers put back all the dams. Mr. Rand stated that he renewed his permit to take down 100 yards of the dam. Mr. Rand stated that if the situation is not resolved we will be under water. Mr. Rowen stated that he understands and if the review is correct this development is not going to have any impact on the situation. Mr. Takesian stated that we don't have a problem with the beavers like Mr. Rand we have a problem with the water coming onto our property. Mr. Rowen stated that we are doing the best we can. Mr. Takesian stated that they will have a big problem with the impacts of the subdivision. Mr. Rowen stated that he won't let this subdivision go forward if they are going to cause harm to the abutters. Mr. Rowen stated that the applicants will not make the problem worse. Mr. Pease stated that even the Town's Engineer stated that the problem will not get worse. Mr. Rand asked why no one from DPW or John Chessia has come out to see this problem with Bear Hill. Mr. Rowen suggested that they address their problems to Mr. Chessia. Ms. Colwell stated that they should address their concerns to the Planning Department and then we will forward them to Mr. Chessia. Continued until April 7, 1998. The North Andover Planning Board held a regular meeting on April 7, 1998 the following members were present: Richard Rowen, Chairman, Alison Lescarbeau, Vice Chairman, John Simons, Clerk, Joseph Mahoney, Richard Nardella & Alberto Angles, Associate Member. Kathleen Bradley Colwell, Town Planner was also present. Ms. Colwell stated that there are no remaining issues with this filing. Ms. Colwell stated that we can't. issue a decision until 'L—BA grants them a variance. On a motion by Mr. Nardella, seconded by Ms. Lescarbeau, the Board voted unanimously to close the Public hearing and direct staff to draft a decision. The North Andover Planning Board held a regular meeting on April 21, 1998. The following members were present: Richard Rowen, Chairman, Alison Lescarbeau, Vice Chairman, Joseph Mahoney & Alberto Angles, Associate Member: Kathleen Bradley Colwell, Town Planner was also present. On a motion by Mr. Angles, seconded by Mr. Mahoney, the Board voted unanimously to approve the draft decision as amended for Lot 1 Dale Street. Attached are the conditions. Sincerely, _ Richard S. Rowen, Chairman North Andover Planning Board 'P Andover Conservation Commission, Board of Health, and the Department of Public Works and be in compliance with the above permits and approvals. 3. Prior to Verification of the FORM U (Building Permit Issuance): a) Prior to the verification of the FORM U for Lot 7, the applicant must propose permanent boundary to be located along the limit clearing. The boundary may take the form of a wall, fence, or shrubs to be approved by the Town Planner. This will provide a permanent boundary along the 75' conservation zone on this lot. 4. Prior to verification of a Certificate of Occupancy: a) Prior to Occupancy of Lot 7, the permanent boundary proposed in Condition 3(a) above must be constructed. b) No pesticides, fertilizers, or chemicals shall be used in lawn care or maintenance. This restriction shall apply and be binding on all current and future owners, their heirs, administrators, successors and assigns, and shall be incorporated within all subsequent deeds to the premises. 5. Prior to release of the Performance Bond: a) A Conservation Restriction enforceable by the Town of North Andover through its Conservation Commission must be placed on Lot 8. The Conservation Commission must approve the terms and conditions of this restriction. b) The applicant shall submit a certified copy of an as -built plan that shows all construction. including topography, sewer lines, storm water mitigation trenches and other pertinent site features. This as -built plan shall be submitted to the Town Planner for approval and shall be stamped by either a Registered Professional Land Surveyor or Practicing Engineer in Massachusetts. C) The Planning Board must by a majority vote make a finding that the site is in conformance with the approved plan. 6. Any stockpiles of earth must be covered with a tarp and contained by hay bales and silt fence if the piles are to remain on the site for longer than two weeks. 7. In no instance shall the applicant's proposed construction be allowed to further impact the site than as proposed on the plan referenced in Condition # 1. 8. No open burning shall be done except as is permitted during burning season under the Fire Department regulations. 3 9. The Contractor shall contact Dig Safe at least 72 hours prior to commencing excavation. 10. 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. 11. This permit shall be deemed to have lapsed after a two -(2) year period from the date a Qzcon which the Special Permit was granted unless substantial use or construction has commenced. CC. Director of Public Works Building Inspector Health Agent Assessor Conservation Administrator Police Officer Fire Chief Applicant Engineer File Berrington Estates - Watershed 2 V1. 3? ' • °c �ss•cHus�� TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS RECc�'�E' JOYCE BRAD:'t'AW TOWN CLERK NORTH ANDOVER MAR 18 10 40 PM '98 Any appeal shall be Ned within 1201 days atter the NOTICE OF DECISION date of filing of this Notice Property: Dale St., Map 37B, Lot #1 Dale, (Berrington Place) In the ORlce of the Town Clerk. NAME: MPG Realty Corporation DATE: 3/11/98 ADDRESS: Dale St., Map 378, Lot #1 Dale PETITION: 006-98 North Andover, MA 01845 HEARINGS: 3/10/98 The Board of Appeals held a regular meeting on Tuesday evening, March 10, 1998, upon the application of MPG Realty Corp., 11 Old Boston Rd., Tewksbury, MA 01876, requesting a Variance for said premises located at Dale St., Map 37B, Lot #1, Dale, (Berrington Place) from the requirements of section 4, Paragraph 136.3(d) (ii), within 75' of Conservation Zone within the Watershed Protection District for construction of a roadway, in the R-1 District, of the Zoning Bylaws. The following members were present: Walter F. Soule, Raymond Vivenzio, Scott Karpinski and Ellen McIntyre. The hearing was advertised in the Lawrence Tribune on 2/24/98 8 3/3/98 and all abutters were notified by regular mail. Upon a motion made by Raymond Vivenzio and seconded by Scott Karpinski, the Board voted to allow the applicant to withdraw the petition without prejudice. Voting in favor. Walter F. Soule, Raymond Vivenzio, Scott Karpinski and Ellen McIntyre. mildecoctl EOARD OF APP LAS Walter F. Soule, acting Chairman V Town of North Andover H°RT4 ��`C::�:=.:_ OFFICE OF o�,,�.o JQ,YCER 'a it :•. To;t�VI ITY DEVELOPMENT AND SERVICES ° p 146 Main Street North Andover, Massachusetts 01845 FE8 I Z I' 04 4 .: 4 S' SSACHUSEt REQUIREMENTS AND DIRECTIONS OF THE ZONING BOARD OF APPEALS FOR FILING APPLICATION FOR THE FOLLOWING- VARIANCES AND SPECIAL PERMITS PARTY AGGRIEVED 1. Every application for action by the Board shall be made on a form approved by the Board. These forms shall be furnished by the Administrative Secretary upon request. Any communication purporting to be an application shall be treated ere notice of intention to seek relief until such time as ff�it is made on the official application form. All information called for by the form shall be furnished by the applicant in the manner therein prescribed. 2. Original and ten (10) copies of the application with a certified abutters list from the Assessors office. (Certified abutters list must accompany application.) 3. Ten (10) copies of the site plan, and one mylar. The mylar shall be stamped by a Registered Land Surveyor or a Professional Engineer (with discipline). The signature box shall have five lines for signatures. The mylar and decision are to be recorded with the Registry of Deeds after signed approval from the Zoning Board of Appeals. A copy of recording will accompany any building permit application according to M.G.L. Chapter 409, Section 14. 4. The fee for publishing the legal notice will be paid for by the petitioner when he/she delivers the legal notice to the newspaper. The legal notice shall be published twice, one week apart in the local newspaper. 5. A copy of the legal notice must be sent to all abutters, by Zoning Board of Appeals-8ecretary, via certified mail return receipt requested at least 7 days prior to the public hearing. The petitioner will be responsible and billed for postage incurred for mailing of` the legal notice and the decision. The Zoning Board of Appeals Secretary will also mail the Notice of Decision to the Abutters and the Petitioner. 1 of 8 n— • on nV � OFC t ; /,0o r,' OT nfXff- tfl� oc. c V �?. e rg SRF-�5;^, �T.et�n mTr foo ocz� i l �nsrcnn��, , Tr. o?cam trp r _ . .. .. d �11e r J -7S rl' [' l �y Received by Town Clerk: TOWN OF NORTH ANDOVER, MASSACHUSETTS BOARD OF APPEALS APPLICATION FOR RELIEF FROM THE ZONING ORDINANCE Applicant MPG Realty Corporation Address 11 Old Boston Road Tewksbury, MA 01876 Tel. No. 978-851-9395 1. Application is hereby made: a) For a variance from the requirements of Section 4 Paragraphl36.3(d) (ii) and Table of the Zoning Bylaws. b) For a special Permit under Section Paragraph of the Zoning Bylaws. c) As a Party Aggrieved, for review of a decision made by the Building Inspector or other authority. Planning Board the applicability of Section 4.136(d)(ii) 2. a) Premises affected are land and building(s) numbered Street. b) Premises affected are property with frontage on the North (X) South ( ) East ( ) West ( ) side of Dale Street Street. Street, and known as No. Map 37B Lot #1 Dale Street. c) Premises affected are in Zoning District R-1 , and the premises affected have an area of 1,305,493 square feet and frontage of 50, & 186' feet. 5 of 8 3. Ownership: a) Name and address of owner (if joint ownership, give all names): R. Ashton & Gwendolyn C. Smith, C/O Trustee Geoffrey Smith 15 Driftwood Drive, North Bradford, CT 06471 Date of Purchase 3-25-60 Previous Owner b) 1. If applicant is not owner, check his/her interest in the premises: X Prospective Purchaser Lessee Other 2. Letter of authorization for Variance/Special Permit required. 4. Size of proposed building: N/A front; feet deep; Height stories; feet. a) Approximate date of erection: N/A b) Occupancy or use of each floor: N/A c) Type of construction: N/A 5. Has there been a previous appeal, under zoning, on these premises? No If so, when? 6. Description of relief sought on this petition From planning board request and/or aroval to construct roadway with required details within'conservation 7. Deed recorded in the Registry of Deeds in Book 912 PageSee attach, �� letters.; Land Court Certificate No. Book Page 188 The principal points upon which I base my application are as follows: (must be stated in detail) (1) Property has 2 existing access points, both of which are within close proximity applicant feels the applicability of this 4.136(d)(ii is questioned, planning board has requested we seek this relief. I agree t pay the filing fee, advertising in newspaper, and incident- expenses* Signature of Petitioner(s) Rev US.,,_.5 �S DESCRIPTION OF VARIANCE REQUESTED ZONING DISTRICT: Residential (R-1) Required Setback or Area N/A Lot Dimension Area N/A Street Frontage N/A Front Setback N/A Side Setback(s) N/A Rear Setback Special Permit Request: Existing Setback or Area Relief Requested This request is for a lot created prior to October 24, 1994. Such request for Special Permit is further submitted pursuant to the provisions of the Watershed Protection Bylaw, if applicable. Such applicability is questioned by the applicant, but, is hereby submitted to adhere to a request of the planning board. 7 of 8 JA 3 C. i CASE # TOWN OF NORTH ANDOVER ZONING BOARD OF ADJUSTMENT OWNER'S AFFIDAVIT I, the undersigned, owner of property located at Dale Street and identified as Map 37B - do hereby authorize MPG Realty Coloration and its representatives 11 Old Boston Road Tewksbu MA 01876 to make the following request with respect to the above-described property: Any and all requests for the approval of Berrington Place an 8 Lot subdivision with roadways and all improvements as shown on plans prepared by Allen & Moor Associates Inc of WoburnMA as may be required by the Watershed Protection Bylaw and the Planning, Board Please refer to Special Permit_ application and accompanying documentation for submittal of this request for ZBA consideration. R. Ashton & Gwendolyn C. Smith Signature w rustee Geoffrey. Smith 15 Driftwood Dr. North Bradford, CT 06471 Address January 23 1998 Date nazba.doc el � q I Of PARTIES UE INTEREST: PACE_—nLV-!_ OF I lc, -r rmDd%oCnTY './ ' . • its &/ . • i MA pill 0 I OF PARTIES Of INTIEREST: PAQE__,. Of MECT PIROPUM ADDRESS CERT. BY: DAT7E: ==�j low W.y oz 1 M jlwl A El 87, M - rpm CERT. BY: DAT7E: ==�j :1 (1F PARTIES OF IN FRF47• aars (1F CERT. BY: DATE: r.... owl, 0 WMA .. _ . mli 0 IN P. - "MAPS, ME '� ���lww / I/ • I i t� / •. CERT. BY: DATE: Y pi PARnES Of IWIR£3T: � �_ OF _1B__ 31EGT PROPUM W I PAR 01 t" E Mmu Ed • aid 7 . n'1 v /' a .� f- � v? � ,cji c.� .-�t` . CERT. BY : ' DATE: Jj- V— <1 i ��s i � i - ♦ i� s i ' _�� ►�AP r CERT. BY : ' DATE: Jj- V— <1 T OF PAf nfES Of INTFRM: PAGF J OF UECT PHOP£RTY RN aanghy CERT. BY: DATE <v a" T1lrOvS / SP- C L n ,e. G oo cv n 9 G ' L C w T.eusr �' and sr Tr: CrLi r It/ 3 UrSe Ste. RN aanghy CERT. BY: DATE <v f " PAKnES Of INTEREST: PA Of ufCT PROPERTY AP PAR x NkmE ADDRESS - r � f " PAKnES Of INTEREST: PA Of ufCT PROPERTY AP PAR x NkmE ADDRESS - ITERS: , o� 4,1 d . T Pa +r i G C ; sn t ' N D t IT1Ci �' ac' •C.c . w —PIP r,.i c I-- .,r CERTBY: (IJ/0 ( DATE: 43 03/10/1998 11.41 6036419862 PD Assoctatcs, C Real Estate Co"sultants 704 Londondarry Turnpike, Auburn, lVl� 03032 March 10, 1998 Zoning Board of ,Appeals Town of North Andover 146 Main Street North Andover, MA 01845 PD ASSOCIATES � ° '� ` P GE 01 RE: Application for Variance -Dale Street -Map 3713-Lrot#1 Via .Facsimile: 1-978-688-9556 Dew Mr. Chairman: 7'etephone #.-(603)641-8200 Facsimile #:(605)641-8882 IFMAR77 1 01998 [J �i app S Pursuant to our meeting on the 25"' of "February along with Kathleen Bradley Colwell and Kenneth Grandstaff, we took the opportunity to review the application with our attorney based on comments that were raised. Considering the importance of this issue and ensuring that the language on our application is clear, our attorney Feels that a new application is appropriate. We feel that a clear interpretation of the Bylaw is critical. We want to make sure that there is no confusion of our request by either the board or any abutters. Therefore, the applicant hereby requests that our current application be withdrawn without prejudice, This will allow us to refile a new application with the language recommended in our meeting and approved by our attorney. Respectfully submitted, :;�V mer A. Pease, It CPM, EA Owner's Representative cc: Michael Gerstein, Esq. Kenneth Grandstaff Kathleen Bradley Colwell rmzbewthd.doc 03/10/98 11:39 TX/RX N0.8275 P.001 =1-�� �� .. H . �, � �,�� ��`'�-� ..,`\. €'# RE � Y ,iOYCE 6i�AG�,�.4W� ��,°•�:.:,e'--�`<y TOWN GLEP,K ,SS'OCHU`�E� NORTH - AN DOY E R TOWN OF NORTH ANDOVER APR 12 of N rJ� MASSACHUSETTS - BOARD OF APPEALS Any appeal shall be filed date of filing of this Notice within 1201 days after the NOTICE OF DECISION in the Office of the Town Clerk. Property: Dale St., Map 37B, Lot #1, (Berrington Place) NAME: MPG Realty Corp. DATE. 4/15/98 ADDRESS: 11 Old Boston Rd. PETITION: 010-98 Tewksbury, MA 01876 HEARING: 4/14/98 The Board of Appeals held a regular meeting on'Tuesday evening, April 14, 1998, upon the application of MPG Realty Corp., 11 Old Boston Rd., Tewksbury, MA 01876, requesting a Variance for said premises located at Dale St., Map 37B, Lot #1, (Berrington Place), North Andover, MA from the requirements of Section 4, paragraphs 136.2 (b) & (iv); 136.2 (f); 136.3 (d), of Table 1&2 to build a roadway with all required details within the 75' conservation zone, in R-1 Zoning District, The following members were present: Walter F. Soule, Raymond Vivenzio, Scott Karpinski, Ellen McIntyre and George Earley, The hearing was advertised in the Lawrence Tribune on 3/31/98 & 4/7/98, and all abutters were notified by regular mail. Upon a motion made by Walter Soule, who removed himself as acting chairman for this vote, and seconded by George Earley, the Board voted to deny a Variance seeking relief from Section 4, P. 136.2 (b) & (iv); 136.2 (f); 136.3 (d), to build a roadway with all required details within the 75' conservation zone, on the basis that the petitioner failed to show substantial hardship, financial or otherwise, relating to unique soil conditions, relating to shape, or topography of land, as required under Chapter 40A, Section 10 of the General Laws and Section 10.4 of the Zoning Bylaws. Voting in favor of the denial: Walter F Soule, Raymond Vivenzio, Scott Karpinski, Ellen McIntyre, George Earley. /decoct2 ATTEST A True Copy BOARD OF APPEALS Raymond V enzio, acting Chairman -Walter Soule, Zoning Board of Appeals PUBLIC HEARING Patricia S. Fernandez 72 Russett Lane Attorney Susan Craighead was present to represent the petitioner, she presented a copy of an overview explaining the request for a variance and a special permit (for the record) . Raymond Vivenzio read the legal notice. The primary issue is that the addition of a library and storage area will have to meet the current requirements regarding setbacks. The relief requested of a side setback and street frontage is because this is the only spot for the addition as the septic is on the other side of the house. Walter Soule asked if anyone was present in favor, no one was present. Walter Soule asked if anyone was present in opposition, no one was present. The Board discussed the variance requirements, and the special permit request and agreed to vote. Upon a motion made by Scott Karpinski, and seconded by Raymond Vivenzio, the Board of Appeals voted to grant a variance requested from the requirements of Section 7, paragraph 7.2 & 7.3 for relief of 25' street frontage, and side setback of 3' and to grant a special permit as requested to add an addition of a library and storage area, to an existing non -conforming lot. Voting in favor: WFS/RV/EM/SK/GE. PUBLIC HEARING: Sprint Spectrum L.P. Boston Hill ® The petitioner was not heard as there were not enough Board members present to take a vote tonight. Atty. Scalise and the Board agreed to continue this petition until next month. PUBLIC HEARING: MPG Realty Corp. Dale St., Map 37B, Lot #1. Raymond Vivenzio said that hearing this petition tonight could be a problem as he will not be present next month should this become a continuance. Walter Soule explained this to the petitioner, as this could run over tonight. The petitioner decided to proceed tonight. Raymond Vivenzio read the legal notice. Atty. Michael Gerstein was present to represent the petitioner, MPG Realty Corp. This is a request for a variance to develop a roadway within the 75' Conservation zone, so as to eventually build an 8 lot residential subdivision. This originally started with the Conservation Commission when an order of condition was received, and went to the Planning Board where the public meeting has been closed. The question is whether there is an issue of applicability for the ZBA to even make or render a decision because he is dealing with an access to build a roadway within the 75' conservation zone. Under Section 4.136 2 if it applies to lots recorded and registered after Oct. 24, 1994. Atty. Gerstein stated, there is a question as to whether the ZBA would have to rule on this because he is dealing with a lot that has 2 existing driveways, one of which provides access to the lot. 5 r If a variance would be requested then it would become a ZBA matter, but because the lots in question were created prior to the effective date of the law, that it may not be applicable, he is here to represent the applicant, also the owner is here to represent the Smith family, and this land has been in the Smith family since March of 1960. There are 2 existing driveways with culverts, one is currently used to. provide access to this property, in 1957 there was an approval of a sub -division using these exact same access points. This is a request to use these access points, there is no'other reasonable use or reasonable access points to this property. The hardship would occur because of the shape of the lot and the access points as they are, this would constitute the hardship. Elmer Pease, a Consultant, presented in favor of this petition. Mr. Pease indicated what areas (color coded) were within the Conservation Zone, and he indicated the areas he is dealing with tonight and where the water line complies with the special permit provision under 4.136, 1,1. He pointed out the beaver pond, and the Town Farm land, and where the wetlands are located. He referenced where the vehicle traffic would take place. Walter Soule asked where the water would run off over the property? Elmer Pease pointed out where the wet lands were and where the culverts were. Walter Soule questioned where the water ends, relative to the watershed line, in reference to the bylaws. Mr. Pease pointed out that he is asking for a variance to use the property through one of the two access points that currently now exist. There are wetlands all around the area, and most of the homes fall within the 75' conservation • zone as pointed out on the map. Jeffrey Smith spoke, he is the guardian of his mother Mrs. Gwendlyn Smith, (submitted a letter for the record), stating that he is in favor of the variance being granted to MPG Realty, his mother's estate would benefit from the funds received by the transaction from Mrs. Smith to MPG Realty as it would help pay for her care as she has a debilitating illness. Kerry McCollister, 206 Dale St., is an abutter and was present to speak regarding the beaver lake situation. Kerry said the beaver lake problem has evolved over the last 10 years and he has been delegated to manage the lake as the problem has been put in his hands. He is here to speak as to whether the sub -division will make matters worse relative to the beaver lake problem-_ He wants to control the lake as he feels it is a major concern for the entire community. He is in favor of the sub -division. Dave Rand, 280 Dale St., spoke next, he lives on the back side of the beaver lake, and he is the only person eligible to touch the lake. He has worked to get a permit to do so, and the beavers are encroaching on the surrounding property. Every morning he takes out 5 beaver dams and every night they are put back. He has a permit in his hand and if anyone disturbs a wetland there is a $25,000.00 fine. Since the request for the variance, he has learned that the dry retention areas on the bottom of Bear Hill do not 9 • ork, and he feels that someone has tampered with them. There is a septic system located there where the water from Bear Hill flows into, he is not in favor of granting a variance to put in a roadway. He has a set of plans for dry retention area on Bear Hill and every drop of water from Bear Hill runs into Dave Rands backyard. Raymond Vivenzio asked why he said someone tampered with the wetlands, it might be a sample of bad engineering? Mr. Rand said that he has informed all of the Boards in Town of this problem. A letter from Ms. Shelly Shuman, 130 Marbleridge Rd. an abutter, was submitted to the Board on her behalf as she was unable to attend the meeting. She is in opposition to the variance for MPG Realty as she now finds she has water in her cellar, and she feels it is because of this she doesn't want anyone to build in the area and tamper with the topography of the land. Raymond Vivenzio read a letter from Kopelman and Paige to Kathleen Bradley Colwell regarding Berrington sub -division, relative to Watershed, Conservation Committee, (letter for record). Timothy Ippolito, intern Architect, with Ben Nutter Associates, was present to represent Maria Dowd who is an abutter, 128 Dale St. His concern is the request of the roadway being built adjacent of Ms. Dowd's property, if a retaining wall will be built by MPG, will this cause a natural depression where the water could drain onto Ms. Dowd's property? How much will the amount of fill be done on the site and how it will effect Ms. Dowd's property? How will this effect lateral displacement on any of the water that is continually rising?. There is a drainage issue because of the beaver problem. The issue of fill and snow plowing forming sediment in a culvert located on Ms. Dowd's property needs to be addressed and who will be responsible for the snow removal from her property put there by the snow plow removal from the roadway. Walter Soule asked if Mr. Ippolito presented this to the Planning Board yet, Mr. Ippolito had not at this time. Raymond Vivenzio suggested that it would be beneficial to get some/any input available from the DPW. The issue was raised by Walter Soule to the petitioner that they should think about whether they would be in the mood for a continuation for 2 months, he asked them to think about the question because some of the Board may not be here next month, and they could be hard pressed to bring in a decision next month because of this. Elmer Pease spoke regarding the beaver problem and Bear Hill run off issue and that this issue came up in front of the Planning Board this week. The Planning Board thru letters of the Engineer that they hired themselves, along with the storm water management practices that they are required to follow, and approved by the Conservation Commission, thru order or conditions, have been addressed. Mr. Pease addressed these concerns as the DPW was notified regarding Bear Hill. The Planning Board doesn't want to render their decision until they are sure MPG has a non - applicability issue or a variance from the ZBA. The issue regarding applicability and does the roadway approval fall before 1994 or after 1994, is still an issue that needs to 0 at it is pe addressed tonight. Mr. Pease said that after the Board deter slsue'th hardship is apP licable, and finds that a variance is granted, he said that the i apparent. Vivenzio raised the question why MPG didn't come to the ZBA first, before Raymond applicability issue at that � gin, Mr. Pease said it was an aPP licable, he is not going to the Planning Board A9 access issue is app time. Mr. Pease personally feels that the roadway asking for it to be a'`lot", therefore he feels it falls under the part of9his?equest is to disturbance zone setback and not the 75 Conserva falls under the pre -19Q4, or the post -1 994? He is ., legally decide if the access (roadway) Board and he is trying to accommodate here tonight on behalf of the Planning Pease that it d . Walter Soule and Raymond Vivenzio informed arguments either to hes everybody. petitioner to present to the ZBA .. incumbent upon the p applicable than what are his applicability, or non -applicability, and then if it is arguments in respect to a variance and where is the hardship and because of the driveway in It is MPG's opinion that this is not applicable question because of the clear meaning of the provisions. the beaver There was more discussion between the abutterand tKapasdregarding Inhasanappeal into the problem and that Mr. Rand advised the Board that State regarding the problem. not be enough ZBA Board members present to Raymond Vivenzio said that there may quo prejudice Because of this Scott make a decision by next month in order to form a q Karpinski asked if MPG would like to withdraw without members e be stpresent next month to another application next month as this would allow the mem Board discussed that vote as they as would be counted as newly voting members . The d not know how they they were not ready to vote on a decision this evening, is argument relative to wanted felt regarding this petition tonight. After wrapping P " abilit requesting a variance, the representative for MPG Realty said they applicability a decision made tonight. Walter Soule asked the representative for MPG Realty what hat the application ard to say tonight regarding a decision. The representatTable 11, is not applicable. Waiter submitted for a variance request under o4.136 draw without prejudice? FS has the FS Soule had 2 questions, 1. Why don't y authority, not to make a motion, but to pass the gavel to the Vice Chairman, will make the motion..... deci to The representative from MPG conferred with his collea9 2 t f Tabae 1Napples, yes or tonight. He is asking tonight if the Board will rule of 4.13 no. IQ Mr. Ippolito said that the applicability issue does apply as this is a lot in its entirety and the lot line as shown on the property on 128 Dale St. are different than the map for the deed. Pursuant to this, upon a motion made by Walter Soule who removed himself as acting chairman for this vote, and seconded by George Earley, the Board voted to deny a variance seeking relief from Section 4, P. 136.2 (b) & (iv), 136.2 (f); 136.3 .(d), to build a roadway with all required details within the 75' conservation zone, on the basis that the w substantial hardship, financial otherwise, relating to unique petitioner failed to sho soil conditions, relating to sha e, ort o ra h of land as required under lam Cha ter in 40A 0 of the General La favor of the denial, WFS/RV/SK/EM/GE. Upon a motion made by Raymond Vivenzio and seconded by Ellen McIntyre, the Board voted to adjourn the meeting at approximately 11:10PM. ml/aprilmtg 0 f hORTI� , O A CHUSEt TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS Notice is hereby given that the Board of Appeals will hold a public hearing at the Steven's Memorial Library, 345 Main St., North Andover, MA on Tuesday the 14th day of April 1998, at 7:30 PM to all parties interested in the appeal of MPG Realty Corp., 11 Old Boston Rd., Tewksbury, MA requesting a Variance for said premises located at Dale St., Map 3713, Lot #1, (Berrington Place) from the requirements of Section 4, Paragraphs 136.2 (b) & (iv); 136.2 (f); 136.3'(d), of Table 1 & 2, to build a roadway with all required details within the 75' conservation zone, of the Zoning Bylaws. Said premises is property with frontage on the North side of Dale St., which is in the R-1 Zoning District. Plans are available for review at the Office of the Building Dept., Town Hall, '120 Main Street, Monday through Thursday, from the hours of 9:AM to I: PM. By Order of the Board of Appeals, William J. Sullivan, Chairman Published in the Eagle Tribune on 3/31%98 & 4/7/98 /legalnov/2 JOYCE RRAO�IHAW TOWN CLERK NORTH ANDOVER Received by Town Clerk: HAR 18 1,9 30 fim TOWN OF NORTH ANDOVER, MASSACHUSETTS BOARD OF APPEALS APPLICATION FOR RELIEF FROM THE ZONING ORDINANCE Applicant MPG Realty Corporation Address 11 Old Boston Road Tewksbury, MA 01876 Tel. No. 978-851-9395 1. Application is hereby made: a) For a variance from the requirements of Section 4 Paragraph136.2 b ( iv)and Table 1 & 2 of the Zoning Bylaws. 136.3 d b) For a special Permit under Section Paragraph of the Zoning Bylaws. c) As a Party Aggrieved, for review of a decision made by the Building Inspector or other authority. 2. a) Premises affected are land and building(s) numbered Street. RE ..Premises affected are property with frontage on the North (x) South ( ) East ( ) 'west ( ) side of Dale Street Street. Street, and known as No. Map 37B, Lot #1, Dale Street. c) Premises affected are in Zoning District R-1 , and the premises affected have an area of 1,305,493 square feet and frontage of 50' & feet. 6 rT +/-) n...- nC n7 nI- 3. Ownership: a) Name and address of owner (if joint ownership, give all names) : R. Ashton & Gwendolyn C. Smith, C/0 Trustee Geoffrey Smith 5 Driftwood Drive, North Bradford, CT Date of Purchase 3-25-1960 Previous OwnerLantern Corporation b) 1. If applicant is not owner, check his/her interest in the premises: X Prospective Purchaser Lessee Other 2. Letter of authorization for Variance/Special Permit required. - 4. Size of proposed building: N/A front; feet deep; - Height stories; feet. a) Approximate date of erection: N/A b) Occupancy or use of each floor: N/A c) Type of construction: N/A 5. Has there been a previous appeal, -under zoning, on these premises? No If so, when? 6. Description of relief sought on t4is petition To build a roadway -with all required details within the 75 conservation zone, if app ica e. ee 36.2(f) 7. Deed recorded in the Registry of Deeds in Book 912 Page 187 NO 1&2 Land Court Certificate No. Book Page The principal points upon which I base my application are as follows: ( ust. be stated n. detail). (1) Property has existing access driveways with culverts, one is currently being used as (2) moth access, drivewav locations are in close aroximity to jurisdictional wetlands (3) No other reasonable means of access are available �4� X11 Dale St. lots ab in this site have drivewa s that fall within the conservation Gran in relief would allow access to ro rt not of e ya la 1e. setbacks. �ppl1 art feels that elle }s not ecpess �p rs ant to �. lt� Table 2. agree to p y t e i ing ee, a ert1si.ng in newspaper, and incidental eenses* i4r?ature of Petitioner (s) 6 of 8 Rav na n-) oc DESCRIPTION OF VARIANCE REQUESTED ZONING DISTRICT: R-1 ( Residential Required Setback or Area N/A Lot Dimension Area N/A Street Frontage N/A Front Setback N/A Side Setback (s) Rear Setback N/A N/A Special Permit Request: N/A Rev 06.03.9ti Existing Setback or Area 7 of 8 Relief Requested �r1L _tri,1,tr.:aIE1 48 -HOLE TEL :1-Su8-372-3086 Ml au 1 11 5 C) CI L1..l:I'LR-, rVU'URAJ 1 wN '1 ecorporationduty tcatlight-iw.lcrthcltwsof CommonweaLtr of D!ussachuaeLL< J' lavin • lu ur°sl lair of butl+,tss rt ( y.. 6 P lreaiitf;l.ua r Msuar.uselta. I- a:nsidetatiuu paid, Middlesex C.;,,, t)• gram to Ashton Smith and ;wendaler. f;. Srltith, husband ar,d +.ifc As d 1 "envnce Ity the Ent i.tV t'_Y of North AndUVer, I.snex County, ).AtBAChunettF, WAll outidatm toornru'I 't tlsi(AM,, Iwo certAin norcels of land situated 2if I)nle SCreet in said ocrtlt An,lover, bounded and cieAcffbcd as :o11,Ow. NAL E.I. NV. 1 ricgintiint; AL the Northwc.atarly corner of: lar,A new or foracrly AlUncr, being chows, as Lot too. 17 A olr'FLan cf Appleton 6sLatea, :isle Street. North ..riduver, t:ass. owner, Lantern, Corp., Lnglncer, Ralph D. drasaCur, ':arch 27, 1952" t.nid plan being recorded its, tltC'North District of: I.aaex hegistry ,,! i,t:cda as Plau NO. 5442; thence running Northerly by a stone wall nu<I l.lhd of Cadogan seven hundred forty-Ifour and ,w/ICJ feet a:orc air• less to an iron pipe at: land of Leland As shu.,n on &Fitt f,Lan; L'ietice, runnint.. kasterly by a Auone wall formirte. the NorLiterly boune..Ary of I.et Nu- 20 on said plan and by a ditch forming the Nort:4erl.y boundary of Lots ?t Ao. 21 and 22 on said Plan Olenoe Ce!itinuing by land of eaid he land az shawn on "f lar, of Land in North Anr,loverl tiara• o„++cd by usn!tl E. Hogan Jr., 'Tela-anry 29, 19':6•' recorded 7;, the iiorti+ U{r.lricC of besox ftogistry of Dec -da As rlan iso. 3200 A total dirtnnce of 2,025 feet -more or less. to the 2ortwr c: it atone wall at Iii -i nr itubcrt. "Y tlfllef an shown on caid In -it ItatlQd plan; titenec 1•urt+in-, And ntnnint;• ;iuutlterLy and by said land of Aller in Unr. by a stonewall., t:L•rno hundred ninety-ohe and 46,/ILK: Jett to ocher l,�nd air Itobc.rt i,liiler • as shown on caid Lnal' hanted elan; thence rut,ning LJcaterly by U,c Nurt.lcrL7 L)oundsry of land of ltobcrt I.illoi I'hi:ic Miller, White. and Uin,llield A& showli on .eaid lnat n.In:cd i,lan, i.ve ttandred eiLhty and V1/lOU feet to a Ot'une wull ac lanri of is&nL+,+rr1 on said plan; taencc Curlli.tl;; acid runnin.' Northt•Yly by t,ie Acune t:nll t,nd load of Sprit)orn, one hundred L'wctt.;y-ni.ne and'.uJ1,.J I:cet ti,z hartacuutcrl� c„tact of said Sanborn larva, nc *Mown on sail pLu1,; c,,eucc. turn in: slid runni.nZ Wettcrly by the t+or'ket•ly I,uunrlr.ry air L,rid of Nalibat-n"and Peters as sho:m on said elan, tau hundred ci.5nty three feet. tc an f.ron pLpe at tine Nortl'+cs:crly corner �: Liu,:: W. Acid :stare; L,K•ncc rafniltIj. And runn.in;; ,southerly :;y the deatOriy line of: said t,itert. :u1.•i AS; sttuvnt an plan recorded N.:. 3442 referred to aoovc, it distance. of four litilltred Llilrty-itine aril /1QLJ fat, 1.,, )i,l: olrcet ub arae.&, un &A1.c Lae: na:aed plan; titin;:c ruta'iiiq, AL•out .Jer.ts; ly i,y F stone waLLL And nal.r >trccu ss showlt or, aai.d l:.al :.tn,:ed plan :r. i,;vc:nl coi.rsee measuring forty -Seven u,ut :4/l;ii Beet, fifty at,!! V;/1.x, feet, thirty i,ix Slid Su/1UU Beet rind fifty t'ec1_ Tf6 VECttt,Cly to .. "Llllc bound mer shoat crit said pLan; L,irr,ct; Cu;ttinl and r,,r.nftt in a genera: Norrhorly direction I.y t:!tc. curve of a hre".,su8 r'uAd as shove air. 6A0,1 .Jlnr. lit two coucsea, nivosurint twenty -sig an,, L )!lex' feet 6v1: .ru•ec hundt•cA :'slid'/ slid Oo/LL•1 feet to e stcnc found 3r. CIi i'nrtl,cest^r', corner of land of Andret)zu as &horn on baiit i N> named plan; 1:1�,•ItCc. turtAn, and rune nr, ,leat.erly by ti -e i.orthcrly oC lend of Andrehen, I'irkham and Yosa flu•^c htinQred ar,i. f.:. C r' y -uric fent Lo tan,t . of eaid grantee mrt•kcA C.A. follith on asi;l Mutt; L`terice ,vrnin ; and rennin;. Northurly by land of seid >_rFntee nin;-c;-f;vt: 1,c: wore I or leve to the Nortnettatcrly corner of said A. Snits ;end; :hence, a.,,. %;urttin;: and ruunin!i 1(catcrly by land aL !;m( .I, ;- shc—.. o:, sAid plan Lwo :,undred elytity-eight and /L..0 J.et cc a p.;luc; tl,orcc. to;'„flit; and runnin;; in a Southwesterly directit,ri'Uy a curve aavin;.n radius o: t:Wc•t Ilundrad aeventy flet, it dig;Lance+Lwo hundrec eighty -t o onG 't2; lUu feet t,; a (X111 i+l"lc its a a tune wall a: nate ,z. ee t as h!, shown on said plan; ttialtice turning and rutinin; Nc•thwtatcrly t7 a atone wall and.Dsle StreetcS'hly-five feet marc 1r less L:, c atone bound 1n the 3outhca&turly Corner of Lu: b;,, 17 A as S."n: or, said ',)lea; tien.ce in a �enersi Not•tho,teterLv elirevcio:i by 1:i< `'outhensLerly t boundury of Lot 17 A in L•!trse courses mt:i,huctY.F Lhirty-une anti 42/1W feet., ninety-four ,a'tei ..S/1L.0 fuel and one nuncrc•d 1, Ir- two And c :5/lLU Ccct t„ thc Nvrthe.atcrly corner of 8u1A Lot. 1'A as shouts ate =-LL_IF•::,t:ER3TEIN08H0L-B Tz—L:1—Si;r— 7= :Ux� (°:.;a-1 1� =' I1 fd_t.t;[)�i p `lz u: a..:•• said flan; tartrate turning and running horthvl:al(!rly Dy Lot 17 A ,it aaJd 1}14311 three htalrlrcd six and 49/lUU feet to the point of beginning r� ? roncaining 50 acres Torr.• or leas, PARCEL IIf Being shomi as Lot 14.). lei un tae Saut4erly aide of Dale tree. n said North Andover cit P"", entitled "Pian of Land in North Andover tt Mass. owned by unniel. L IloRan Jr. '-ebrua- r 9, 1956. ; id pLan beillir recorded in said rel(1st'ry as Plan flu. }2v6, aalds premised s ;; mand heinora oarticularly bonded adescribed as itrllowel �. 1 .^' 1I'•.; NV.(THEAST-RI•Y two hundred fifty fact more or lees by rf.1e Stt'CCtI 30UT1fI:ASTLF.LY ,� one I%undred sixty eight feet !ao-e or Lces by Lot N- . 1.5 on said plat, and ^]< SOW rti!lE;SrUtLY two hun:tred twenty two feet mora or less by lent) how or tvrancrly N(v England Power Company nes Shown on said 1114211. j Cotlteining Z1,5Ju aglaare feet morecr leas according to said plan, being part of the pretaif:ss conveyed to the ::rar,tur Corporattuu by decd of Uaniel e.. i,ogau Jr, et six dated Aprii lo, 19501 recorded •i in &aid 1(cgistrp, doah j31 !'ane Said preaaiaes are conveyed subject to a•taking by the L•esex Cuunty Coicodaiiuners for tare rclocstivll of I;Ale Street, recorded in 8a:d Aegictry, Jook '92, e'a�te 435, Li «c far as Che same affects LhV I, within described preaaises, f idcaning and inLetlding, and,l�rcuy conYCVitsg to the grantees of all the Land ir, North Andover ,Iv. standing o_` record in the name oi' j Lantern Corilarati..n whether or nct the .n••c is included uittlir, tela boundaries t.f the above dcacribed yurccia. " .i Said prttoisess are oonveycd .object to the tsxea ft•r the current year 1+hidll rhe j;l'aalle(5b hercirf aha Uale trlld agree to "Ay. '•• ?h<• yzantcr c.fiYporation ne)rwlth conveys to the said groritre: an y and ull riraht, danajr.s C y I to t,Ijj!:h I ma) as a )f,•SJlI of t.hi• 7a11an referred to abcve_. U. S. Pcaf•rnl Rcv,cr:nrl SInmpa 111 Fnttl r.f S--J:.,l af.l ::xc.I .. i,l l:: n.. a•I:tll o.a 1'saa . ... ..••, (: ,•�_. .. u,l .Ivy ;.,Str J...l'"i ht Hlilltrag ni4waf, ole axle Lp.""}:i:i1 �(iN!'(iltlt'JtN .•! has caused its o Wyle aeal to be here:; a.'Exod and these preacc:. u be airned, acknowledged and i CelirneJi.esn�meandLthalltY Guort.r H. Matheaon, Jr. �. lreaaurer ru Presf cient and, hereto du�y •uthorteed, ll:la t.ves,ty-f r•f.th �.. `'• _ 1 Jay of Harsh Isa the year une tbo,--d n(nt hundred and sixty : Slrn.d •.d .eaje4 In prelcoee of :.1 :.•c t I.�11IL,'tt: L:IiE(1'J�,i,l'=(NJ `I f�rtsfdent e� !7'eascr r p vr4r Onlnrunnwitui;q of 1{9aaaurhnsrila F Eaxex 15 `l., -ch 25, 191,0 } r. I Tt`en ptraoualiy anrcaal 6,e �uu�c rur,;C Ccurge 7i, Methcr.ult, ?resident s Treaeut �'+c •t'FTowtavlied the icregolrt u.5t r:u:um v. Le J+c (r;r act and Jee•i of 9fi i.A:: i £fU. COR.YUELI': I(d7 ?�. Ii Cnnrcce r....... .._tctu'rcr 22, a' ^(,]:Cured ilAr. at ;'.r, •b LEONARD KOPELMAN DONALD G. PAIGE ELIZABETH A. LANE JOYCE FRANK JOHN W. GIORGIO BARBARA J. SAINT ANDRE JOEL B. BARD EVERETT J. MARDER PATRICK J. COSTELLO JOSEPH L. TEHAN. JR ANNE -MARIE M. HYLAND THERESA M. DOWDY WILLIAM HEWIG 111 DEBORAH A. ELIASON JEANNE S. MCKNIGHT JUDITH C. CUTLER RICHARD BOWEN KOPELMAN AND PAIGE, P. C. ATTORNEYS AT LAW 31 ST. JAMES AVENUE BOSTON. MASSACHUSETTS 02716.4102 BOSTON OFFICE (6171 556.0007 FAX (6171 664.1796 NORTHAMPTON OFFICE (4131 565.6632 WORCESTER OFFICE 1606) 752.0203 November 21, 1997 BY FACSIMILE - (978) E88-9542 ]vis. Kathleen Bradley Colwell '1 own Planner North Andover Town Hall FPD ; NOV 2 4 1097 KATHLEEN M. O'DONNELL DAVID J. DONESKI SANDRA CHARTON ILANA M QUIRK JOHN RICHARD HUCKSAM. JR. SUSAN M. CALLAHAN BRIAN W. RILEY JOHN J. KENNEY. JR. ROBERT PATTEN MARY L. GIORGIO KATHLEEN E. CONNOLLY MICHELE E. RANOAZZO PETER J. FEUERBACH MARY JO HARRIS THOMAS W. MCENANEY JONATHAN M. SILVERSTEIN TIMOTHY J. ERVIN KATHARINE I. GOREE CHRISTOPHER J. POLLART 120 Main Street NNING 9 -Non North Andover, MA 01845 Re: Berrington Estates Subdivision - Interpretation of Watershed Protection District Bylaw and related (,questions Dear Ms. Colwell: You have requested an opinion regarding several issues raised by the applicant's attorney in regard to the proposed Berrington Estates subdivision. It is my understanding that, in particular, you seek clarification as to: 1) whether the Watershed Protection District Bylaw (the "Bylaw") affects this proposed subdivision; 2) whether the applicant, if required to obtain a variance, should obtain that variance from the Planning Board or from the Zoning Board of Appeals; and 3) what role the Conservation Commission will play with respect to this proposed subdivision process. Briefly, in response to these questions, it is my opinion that: 1) the Watershed Protection District Bylaw xvill affect any lot(s) the applicant records after October 24, 1994, the effective date of the Bylaw, 2) if the applicant is required to obtain a variance fioni any part of the Zoning Bylaw, including the Watershed Protection District Bylaw, the Zoning Board of Appeals will he (lie proper authority to issue such a variance; and 3) the Conservation Commission will be responsible for enforcing the Town's general (i.e., nun-zoninjg)Wetlands Bylaw and the State Wetlands Protection Act, but not the Watershed Protection District Bylaw which will be enforced by the Planning Board. PRINTED ON RECYCLED PAPER ZO-d ZV96 999 SOS 'AaO 'WOO -AaAOPUV 4'1 -ADN die=Z1 86-Zi-ueC KOPELMAN AND PAIGE, P.C. Ms. Kathleen Bradley Colwell Town Planner November 21, 1997 Page 2 Application of the October. 1994 Watershed Protection District Bylaw The facts as I understand them are as follows. The applicant seeks to subdivide a parcel of property which he has owned since prior to the effective date of the Watershed Protection District Bylaw. However, before lie actually obtains subdivision approval for this property, he is proposing to build a road into the center of it; lie intends to later use this road as the access into the subdivisiol?. This proposed road wrill undisputedly cross a non -disturbance buffer zone a-- defined sdefined in the Watershed Protection District Bylaw. He hopes that by building the road prior to completing the subdivision process, he will avoid the Watershed Protection District Bylaw requirements because the road will have been built un u lot which was in existence before October 24, 1994. In my opinion, the applicant's property will not be subject to the restrictions of the Watershed Protection District By-law until the applicant records or registers the property as consisting of nein lots. That is, in my opinion the Bylaw requirements only apply to those lots recorded or re List, �tered after October 24, 1994. Since the applicant's lot was in existence before that date, it is my opinion that it is not subject to the Bylaw. Furthermore, in my opinion, merely proposing to subdivide the lot does not trigger the restrictions under the Bylasv. In my opinion, the language of the Bylaw clearly states that it is applicable only to those lots recorded and registered after Octuber 241, 1997. Therefore:, in my opinion, until the applicant records or reaisters new lots of the subdivision, the Bylaw does not apply. As a result, whether the Bylaw will apply or not in this particular case depends largely on how the applicant chooses to proceed. It is possible that the applicant could complete the subdivision process, including construction of the road, without recording any of (lie lots, i.e., by covenanting to secure the construction of the subdivision ruad, thereby avoiding the necessity of recording the lots until after construction is complete. On the other hand, it is possible he will record the lots prior to the completion of construction, (after posting a bond or due to another circumstance), thereby triggering the Bylaw requirements, in my opinion. In summary, it is my opinion that once the new lots arc recorded, the Bylaw will become applicable, but work performed on the existing, °unsubdivided" lot will not be subject to the Bylaw. Variance Procedures With respect to the second question, it is my opinion that if the applicant should require a variance I'rulu the provisions ofthe Watershed Protection District Bylaw, he must obtain such a variance from the Zoning; Board of Appeals. In a letter dated July 23, 1997, the applicant's attorney seems to indicate lie believes the Planning Board would be the proper authority from which to obtain a variance. In my opinion, this position is mistaken. While it is true that pursuant to the Watershed Protection District Bylaw, the Planning Board Is cinpuwered to hear and act on special pCnnit requests, nothing; alters the exclusive authority given to the 7.oning Board of Appeals to hear and decide variance requests. £O - d ZV96 099. SOS - AaO -WOO „AaAOPUV ya_.AON d L C = Z i 96 - Z i -UEC Ms. Kathleen Bradley Colwell Town Planner November 21, 1997 Page 3 The third question appears to ask what role and authority the Conservation Commission has with respect to processing this subdivision request. In my opinion, the Conservation Commission will conduct a review which is separate from that of the Planning Board and Zoning Board of Appeals. The Conservation Commission will review the applicant's plan to ensure compliance with the Tuwn's Wetlands Bylaw and State Wetlands Protection Act. The Planning Board (and Zoning Board of Appeals, if necessary) will review the plan with respect to the Watershed Protection District bylaw and all other applicable zoning and subdivision provisions, rules and regulations. Should you have further questions iegarding this matter, please do not hesitate to contact me. Very truly yours, Joel B. Bard JBBJKAH/atg cc: Town Manager Board of Selectmen 36919/nandl9999 b0' d ZV96 889 IROS ' AeO -woo „tanopud WI. AON dZC = Z i 86-Z i -uL-C' .. -.i Herbert P. Phillips, P.C. Michael A. Gerstein LAW OFFICES OF APR 13 199$ Stuart M. Holber /7 Q Clwi p/�_Russell . wensChannenTI * s / efstp/y� Hoffia /11 lI / —n- /"r "�Jane M. Owens Triano `�� f NlJ Ll..1/Iif[(ll,l V� _ Ronald N. Beauregard Kevin P. Rauseo 25 Kenoza Avenue ■ Haverhill, MA 01830 Tel: (978) 374-1131 1(800) 457-6912 0 Fax: (978) 372-3086 Of Counsel: John T. Pollano Gerald M. Lewis April 10, 1998 Town of North Andover Zoning Board of Appeals 146 Main Street North Andover, MA 01845 Re: Applicant: MPG Realty Corp. Owner: Gwendolyn C. Smith Location: Dale Street (Map 37B, Lot 1) Dear Board Members: Enclosed please find five (5) copies of the Memorandum in Support of Applicant's Request for a Variance relative to the above referenced matter. I wish to confirm the hearing on such request is set for Tuesday, April 14, 1998. MPG By itt5 Michael A. Gerstein MAG/lf cc: MPG Realty Corp. All attorneys admitted in Massachusetts. Holber, Beauregard and Rauseo admitted also in New Hampshire. Holber admitted also in Maine. Other office: 32 Saco Avenue, P.O. Box W, Old Orchard, ME 04064 Reply to Haverhill office only X 4' April 10, 1998 Town of North Andover Zoning Board of Appeals 146 Main Street North Andover, MA 01845 Re: Applicant: MPG Realty Corp. Owner: Gwendolyn C. Smith Location: Dale Street (Map 37B, Lot 1) MEMORANDUM IN SUPPORT OF APPLICANT'S REQUEST FOR A VARIANCE FACTS Applicant proposes to construct an eight (8) lot residential subdivision on the above site and has filed a Definitive Plan for subdivision approval with the North Andover Planning Board. Such matter has already been heard at such Planning Board on March 17, 1998 and April 7, 1998. At such recent meeting, the Planning Board voted to close the public hearing. Applicant has further received an Order of Conditions from the Conservation Commission dated January 7, 1998. Applicant hereby seeks a variance, if applicable or required, to build a roadway within the seventy five foot conservation zone, pursuant to Section 4.136.2 (f) of the Zoning By Laws of the Town of North Andover. As further background information, you should be aware the lot has two existing access driveways with culverts, one of which is currently being used for access purposes. There is no other reasonable means of access to the lot and, in fact, a previous subdivision known as "Appleton Estates" was approved using such access points in 1957. Both the driveway locations are in close proximity to the jurisdictional wetlands, although there is no other access that might be available which necessitates the variance request. It would be important to note that a review of further Dale Street lots abutting the site all evidence driveways that fall within the conservation setbacks. There are further issues relative to this lot dealing with the applicability of the provisions of the Zoning By Laws which were made known to Town Counsel. The provisions relating to the elm Zoning By Laws which were made known to Town Counsel. The provisions relating to the establishment of the Conservation Zone and the enlargement of the non -disturbance zone [Section 4.136.2 (f)] only apply to lots recorded and registered after October 24, 1994, the date of the enactment of such provision. The owners obtained title to such lot in March, 1960, thus exempting the applicability of the provisions or at least raising the question as to the applicability of such provision. Notwithstanding such situation, Applicant is requesting a variance so as to proceed with such subdivision and to be able to use the roadways already in existence. ISSUE PRESENTED: WHETHER THE ZONING BOARD OF APPEALS FOR THE TOWN OF NORTH ANDOVER SHOULD GRANT A VARIANCE TO APPLICANT ARGUMENT The Zoning Bylaws for the Town of North Andover provide for standards to be used in granting variances pursuant to Section 10.4. Such also exist in Massachusetts General Laws Chapter 40A, Section 10, which allows the granting of a variance where "Owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the Ordinance or Bylaw would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or bylaw." The courts have held that substantial hardship, financial or otherwise, is found only where, under unique circumstances, it is not economically feasible or likely that the locus would be developed in the future for a use permitted by the zoning ordinance or bylaw. Such was the decision rendered in the case of Cavanaugh v. DiFlumera 9 Mass App Ct 396, 401 N.E. 2d 867, 871 (1980). It is important to note and review in the Request for Variance, that the roadways through which access is being sought provide the only means of access to such lot. The owner, Gwendolyn Smith, is currently suffering from an advanced state of Alzheimer's Disease and is unable to care for herself, and is cared for by her children, including her son, Geoffrey Smith, who has been appointed her guardian. While it is acknowledged that the personal hardship of an owner would not be the basis of granting a variance based upon hardship, it is important to note that such land has been in the Smith family for many years, a previous subdivision was allowed using the same access, and the failure to grant such variance would prevent the best and proper use of such land, that being for residential purposes. There are unique conditions affecting the shape, topography and soil conditions of the lot due to the access issues, the situation of such land being in a watershed district and the necessity to traverse such currently existing driveway to provide the needed access. Such unique condition is clearly evident in this matter and is worthy of your further consideration. It is further believed that a literal enforcement of the Zoning requirements would create a hardship. An older case of Brackett v. Board of Appeal of Boston, 30 NE 2d 961 (1942) provided language that I think would be worthy of your consideration in dealing with hardship and an owner's not being allowed to reasonable use of the property. The Court in such Brackett case stated, "no one factor determines the question of what is practical, difficult or unnecessary hardship, but all relevant factors, when taken together, must indicate that the plight of the premises in question is unique." The hardship to the Smith Family is apparent and the inability of the Applicant to make proper use of such land, for residential purposes, clearly mandate the necessity of a variance being granted. It is further believed that should this Board grant a variance, it will not substantially harm public good, nor substantially derogate from the Bylaws' purpose. It is certainly the intent of the Applicant to maintain the residential character of the neighborhood, and comply with Commonwealth of Massachusetts law that will protect the property both as to its development and conservation issues. Applicant only seeks to have use of a driveway, which currently exists, for access to such property and use related utilities. The fact that the driveway is in the Watershed Protection District does not cause any harm to the public good nor derogate from the Bylaws' purpose, especially when one considers that issues dealing with such Watershed District were reviewed by the Conservation Commission, which issued an Order of Conditions and which further has been considered by the Planning Board in its determination in granting subdivision approval. It is further noted that the Courts have held that "some derogation from the Bylaw's purposes is anticipated by every variance; otherwise, the denial of relief on the basis of a slight or insubstantial department from the goals of the Bylaw would prohibit the grant of any variance". Cavanaugh v. DiFlumera 9 Mass App. Ct. 396, 401, 401 NE 2d 867 (1980). It is acknowledged that a variance is only granted in situations where all applicable provisions of the Zoning By Laws of the Town of North Andover and the Commonwealth of Massachusetts are met. It is believed, in this petition, that Applicant and Owner have submitted proper and substantial information and documentation, have reviewed matters with Town Counsel and the Town Engineer, and have met with all required Boards and officials to comply with all municipal requirements. The use of the driveway is an integral part" and a prerequisite to the use of the lot and it is believed that the standards for a variance have been met, the requisite hardships and issues have been addressed, the inhabitants of the Town of North Andover would not be adversely affected, and that the granting of a variance would be the proper and suitable relief. ,V CONCLUSION For all matters set forth in this brief statement, petitioner, MPG Realty Corp., respectfully requests that its petition seeking a variance is granted. MPG Realty Corp. by its attorney, Michael A. Gerstein Phillips, Gerstein, Holber & Channen 25 Kenoza Avenue Haverhill, MA 01830 (978) 374-1131 BBO # 190040 l EE APR 2 6 April 26, 1999 Town of North Andover Zoning Board of Appeals 146 Main Street N. Andover, MA 01845 RE: Applicant: MPG Realty Corp. Owner: Gwendolyn C. Smith Location: Dale Street (Map 37B, Lot 1) MEMORANDUM IN SUPPORT OF APPLICANT'S REQUEST FOR A VARIANCE FACTS Applicant has received approval from the Planning Board for an eight (8) lot subdivision known as Berrington Estates Place of which seven (7) lots will be for construction of single family residential homes and one (1) lot reserved as a conservation lot. The Planning Board further granted a special permit from the requirements of the North Andover Zoning By -Law, Section 4.136(b)(d)(D) of the Watershed Protection District so as to allow the applicant to build a roadway, waterline and detention basins within the non -discharge non -disturbance and conservation buffer zones. The special permit was approved on April 21, 1998 and received by the Town Clerk's office on April 23, 1998 and the definitive subdivision was approved on April 21, 1998 and received in the Town Clerk's office on April 22, 1998. The approval by the Planning Board was contingent upon receipt of a variance from the Zoning Board of Appeals to allow for the roadway to be constructed within the seventy five (75) foot non -disturbance buffer zone. On April 4, 1998 a hearing was convened by the Zoning Board of Appeals dealing with the issue of applicability of 4.136.2(b) Table 1 and 2, 4.136.2(f) and 4.136.3(d) as well as the seeking of a variance for the project. It is applicant's position that great confusion existed as to the applicability issue at the hearing, and as a result thereof, an adverse decision was received by Applicant. This was appealed to the Land Court of the Commonwealth of Massachusetts, which 7 appeal is still pending. On April 6, 1999 as a result of a Petition for Repetitive Hearing pursuant to Section 10.8 of the North Andover Zoning By -Laws, the Planning Board unanimously approved the Repetitive Petition and thus the present case is currently, again, before the Zoning Board of Appeals for a Variance. As further background information as to the locus in question, you should be aware the lot has two existing access driveways with culverts, one of which is currently being used for access purposes. There is no other reasonable means of access to the lot and, in fact, a previous subdivision known as "Appleton Estates" was approved using such access points in 1957. Both the driveway locations are in close proximity to the jurisdictional wetlands, although there is no other access that might be available which necessitates the variance request. It would be important to note that a review of further Dale Street lots abutting the site all evidence driveways that fall within the conservation setbacks. ISSUES PRESENTED: WHETHER THERE ARE SPECIFIC AND MATERIAL CHANGES AND CONDITIONS TO ALLOW FOR CONSIDERATION OF VARIANCE REQUEST. WETHER THE ZONING BOARD OF APPEALS FOR THE TOWN OF NORTH ANDOVER SHOULD GRANT A VARIANCE TO APPLICANT. ARGUMENT 1. Repetitive Petition. Section 10.8 of the Zoning By -Laws for the Town of North Andover states that "the Zoning Board of Appeals may not act favorably upon a Petition which has been previously denied within a two (2) year period of time unless four (4) of the five (5) members of the Zoning Board of Appeals find that there are specific and material changes in the conditions upon which the changes in the record of its proceedings and only after a public hearing, held by the Planning Board, at which consent to allow the Petitioner to re -petition the Zoning Board of Appeals will be considered and after notice is given to parties in interest and only with four (4) of the five (5) members of the Planning Board voting to grant consent". Such approval from the Planning Board was received on April 6, 1999, and Applicant contends that specific and material changes do exist in this matter. The statutory'provision on Re -Applications are contained in M.G.L. Chapter 40A Section 16 which also requires "Specific and material changes in the conditions upon which the previous unfavorable action was based". Applicant contends, as listed in the submittal made with this application to the Board, that specific and material changes have, in fact, been made and which are specifically highlighted for this Board's consideration. a_ X. a It has been held by the Courts of the Commonwealth that when application for variance has been finally and unfavorably acted upon it may not be favorably acted upon within 2 years unless 1) The Board of Appeals finds that there are specific and material changes in the proposal and 2) the Planning Board consents to reconsideration. Paquin v. Board of Appeals 27 Mass. App.Ct. 577, 541 N.E.2d 352 (1989). The Appeals Court addressed the issues required in the case of Ranney v. Board of Appeals of Nantucket 11 Mass.App.Ct. 112, 414 N.E.2d 373 (1981) in upholding the determination by a Planning Board that "cosmetic" changes in the plans constituted "specific and material changes" within the meaning of Section 16. While such case dealt with proposed additions to a motel, the changes therein involved issues dealing with lighting, sound installation and landscaping which, while determined to be "cosmetic", were sufficient for the Court to find them to be specific and material. The changes made in Applicant's Plan on the Dale Street lot are quite substantial, and this Applicant contends that such prerequisite for consideration of the variance has been met. 2. Variance Request. The Zoning Bylaws for the Town of North Andover provide for standards to be used in granting variances pursuant to Section 10.4. Such also exist in Massachusetts General Laws Chapter 40A, Section 10, which allows the granting of a variance where "owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the Ordinance or Bylaw would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or bylaw." The courts have held that substantial hardship, financial or otherwise, is found only where, under unique circumstances, it is not economically feasible nor likely that the locus would be developed in the future for a use permitted by the zoning ordinance or bylaw. Such was the decision rendered in the case of Cavanaugh v. DiFlumera 9 Mass App Ct 396, 401 N.E. 2d 867, 871 (1980). It is important to note and review in the Request for Variance, that the roadways through which access is being sought provide the only means of access to such lot. The owner, Gwendolyn Smith, is currently suffering from an advanced state of Alzheimer's Disease and is unable to care for herself, and is cared for by her children, including her son, Geoffrey Smith, who has been appointed her guardian. While it is acknowledged that the personal hardship of an owner would not be the basis of granting a variance based upon hardship, it is important to note that such land has been in the Smith family for many years, a previous subdivision was allowed using the same access, and the failure to grant such variance would prevent the best and proper use of such land, that being for residential purposes. There are unique conditions affecting the shape, topography and soil conditions of the lot due to the access issues, the situation of such land being in a watershed district and the necessity to traverse such currently existing driveway to provide the needed access. Such unique condition is clearly evident in this matter and is worthy of your further consideration. It is further believed that a literal enforcement of the Zoning requirements would create a hardship. An older case of Brackett v. Board of Appeal of Boston, 30 NE 2d 961 (1942) provided language that I think would be worthy of your consideration in dealing with hardship and an owner's not being allowed to reasonable use of the property. The Court in such Brackett case stated, "no one factor determines the question of what is practical, difficult or unnecessary hardship, but all relevant factors, when taken together, must indicate that the plight of the premises in question is unique." The hardship to the Smith Family is apparent and the inability of the Applicant to make proper use of such land, for residential purposes, clearly mandate the necessity of a variance being granted. It is further believed that should this Board grant a variance, it will not substantially harm public good, nor substantially derogate from the Bylaws' purpose. It is certainly the intent of the Applicant to maintain the residential character of the neighborhood, and comply with Commonwealth of Massachusetts law that will protect the property both as to its development and conservation issues. Applicant only seeks to have use of a driveway, which currently exists, for access to such property and use related utilities. The fact that the driveway is in the Watershed Protection District does not cause any harm to the public good nor derogate from the Bylaws' purpose, especially when one considers that issues dealing with such Watershed District were reviewed by the Conservation Commission, which issued an Order of Conditions and which further has been considered by the Planning Board in its determination in granting subdivision approval. It is further noted that the Courts have held that "some derogation from the Bylaw's purposes is anticipated by every variance; otherwise, the denial of relief on the basis of a slight or insubstantial department from the goals of the Bylaw would prohibit the grant of any variance". Cavanaugh v. DiFlumera 9 Mass App. Ct. 396, 401, 401 NE 2d 867 (1980). It is acknowledged that a variance is only granted in situations where all applicable provisions of the Zoning By Laws of the Town of North Andover and the Commonwealth of Massachusetts are met. It is believed, in this petition, that Applicant and Owner have submitted proper and substantial information and documentation, have reviewed matters with Town Counsel and the Town Engineer, and have met with all required Boards and officials to comply with all municipal requirements. The use of the driveway is an integral part and a prerequisite to the use of the lot and it is believed that the standards for a variance have been met, the requisite hardships and issues have been addressed, the inhabitants of the Town of North Andover would not be .adversely affected, and that the granting of a variance would be the proper and suitable relief. CONCLUSION For all matters set forth in this brief statement, petitioner, MPG Realty Corp., respectfully requests that its petition seeking a variance is granted. MPG Realty Corp. by its attorney, ichael A. Gerstein Phillips, Gerstein, Holber & Channen 25 Kenoza Avenue Haverhill, MA 01830 (978) 374-1131 BBO # 190040 Herbert P. Phillips, P.C. Michael A. Gerstein Stuart M. Holber Russell S. Channen Jane M. Owens Triano Kevin P. Rauseo Daniel J. Norris Of Counsel: Gerald M. Lewis Harold N. Mack Town of North Andover Zoning Board of Appeals 146 Main Street N. Andover, MA 01845 RE: MPG Realty Corp. Dear Sir/Madam: LAW OFFICES OF Thos, 6ers"7. Hoffia & Chmwn 25 Kenoza Avenue ■ Haverhill, MA 01830 Tel: (978) 374-1131 / (800) 457-6912 0 Fax: (978) 372-3086 April 26, 1999 VIA HAND DELIVERY Enclosed please find Memorandum in Support of Applicant's Request for a Variance. I also wish to confirm the hearing on Tuesday, May 11, 1999 at 7:30 P.M. Very truly yours, Michael A. Gerstein MAG/j cm enc. All attorneys admitted in Massachusetts. Holber, Rauseo and Norris admitted also in New Hampshire. Holber admitted also in Maine. Other office: 32 Saco Avenue, P.O. Box W, Old Orchard, ME 04064 Reply to Haverhill office only TABLE OF CONTENTS FOR REPETITIVE PETITION REQUEST: Cover Letter Repetitive Petition Request Application Variance Request Addendum "A" Owners Affidavit Property Deed Abutter List Exhibit 1 Repetitive Petition Request Exhibit 2 Supporting Documents FOR VARIANCE REQUEST: Exhibit 1 Repetitive Petition Request Data Exhibit 2 Supporting Documents Exhibit 3 Alternative Access Report Exhibit 4 Conservation Commission Order of Conditions Exhibit 5 Planning Board Definitive Subdivision Conditional Approval Special Permit Exhibit 6 Letter-Atty. Joel B. Bard Letter-Atty. Michael A. Gerstein Compliance Brief PD Associates, LLC Real Estate Consultants 1600 Candia Road, Suite #7, Manchester, NH 03109 April 1, 1999. Zoning Board of Appeals 27 Charles Street North Andover, MA 01845 Attn: Chairman Dear Mr. Chairman, Telephone #:(603)641-8200 Facsimile #:(603)641-8882 Please accept this letter as my clients request for a repetitive petition hearing regarding the property located on Dale Street and identified as Tax Map 37B, Lot 1. This development is also referred to as Barrington Place. The Zoning Board of Appeals has jurisdiction in. our request pursuant to Section 10.8 of the Town of North Andover Zoning, Bylaw and M.G.L. ch. 40A, §16. I have also included in this submittal package our application for a variance. It appears directly after this letter. In our application, we have requested relief from Section 4.136 and added our request for a hearing for a repetitive petition. We feel that the information C as submitted, will address both requests. We have segmented the Exhibits in order for the Board to better review our two separate requests for approval. 11 C L F� If you would like any additional information, please feel free to contact me at your earliest convenience. Respectfully submitted,. z 4,z, e I ��-4W14 Elsner A. Pease ,H cPM, EA Owner's Representative Cc: Kenneth Grandstaff Michael A. Gerstein, Esq. TOWN OF NORTH ANDOVERQt raRT,. {{b�� OFFICE OF J *��S •ATO lf',`� COib1 MTI CITY DEVELOPMENT AND SERVICES S.CHUg4 GWilli= J. Scott DireC:or 27 CHARLES STREET FAX (973) 683-95422 a(978)688-95-31 NORTH ANDOVER, MASSACHUSE 1 I'S 014 4: REQU=MENTS AND DIRECTIONS OF THE ZONING BOARD OF APPEALS C FOR FILING APPLICATION FOR THE FOLLOWING:. VARIANCES AND SPECIAL PERwIITS PARTY AGGRIEVED 1. Every application for action by the Board shall be made on a form approval by the Board. These forms shall be furnished`by the Administrative Secretary upon request. Any communication shall be treated as mere notice of intention to seek relief until such time as it is made on the official application form. All information called for by the form shall be furnished by the applicant in the manner therein prescribed. 2. Original and ten (10) copies of the application with a certified abutters list from the Assessors office. (Certified abutters -list must accompany application.) 3. Ten 10) copies of the site plan, and one molar. The mylar shall be stamped by a Registered Land Surveyor or a Civil Engineer (with discipLine). The signature box shall have five lines for signatures. The mylar and decision are to be recorded with the Registry of Deeds after signed approval from .the Zoning Boar-d.of Appeals. A copy of recording will accompany any Cj buildingpermits application according to M.G.L. Chapter 409, Section 14. 4. The fee for publishing the legal notice will be paid for by the petitioner when he/she delivers the legal notice to the newspaper. The -legal notice shall be published twice, o.ne wea- ,q art in a local newspaper. a F, A copy of the legal notice must be sent to all abutters, by Zoning Board of Appeals Secretary, via mail at least 10 days prior to the public hearing, The petitioner will be responsible and billed for postage incurred for mailina of the leaal notice and the decision. The Zoning board of Appeals Secretary will also mail the Notice-cfDecision to the Abutters and the Petitioner. 6. Check for S25.00 for filing fee, made out to the Town of North Andover. . 1 of 8 BOARD OF APPEALS 633-9541 BU'ILDIN'GS 0583: 545 CONSLRVATIO 1683-9530 HEAL.TH633-9540 PLANNING 633-9535 GI 7. The applications must be time -stamped by the Town Clerk before acceptance by the Board of nappeals. lel S. The petitioner or their agent or a legal representative must attend the public hearing. 9. Any applications involving State highways, such as Route 114, Route 125, etc., must have a copy of site plans subrnitt-ed -.o -ivir. ShermanEidelmran (or -leis successor) -at -the -mak Dept. -of -Public Warks W'orks. District 1, 519 Appleton St., Arlington. NIA 02171 at least one weep before the scheduled meeting. PLAN OF LAND TO A-CCO-NI-P.ANY PETIT.10N Each application and petiticn.to the Board shall be accompanied by the following described plan: The site of the plan shall ce 11" X 17", drawn to scale, 1 inch equals 40 feet: it shall have a north C point, names of stree.'s.-zG-ning-districts,-names -and-address-o-f-owners-of-pre$ert-ies3xiz a rPini u -of 00 feet of the subject property, property lines and location of buildings on surrounding properties. The location of buildings or use of the property where a variance is requested and distances from adjacent buildings and property lines shall be verified in the field and shown on the plan. The dimensions of the lot and theP ercentage-.ofthe lot -covered by the -principal-andaccessory-buildingsand-the required -parking spaces shall be shown. Entrances, e:cits, driveways, etc, that are pertinent to the granting of the variance Cshall be shown. All proposed data shall be shown in red. Any topographical feature of the parcel of land relied upon for a variance, such as ledge, rock peat, or natural condition of water, -brook-or-r-iver, shall be shoe -ori the engineering -plan. When a variance is requested to subdivide a parcel of land the dimensions and area of the surrounding lots may be taken from the deed or lotting plan for comparison of the site of the lot in the neighborhood, noted on the plan as such, and marked `approximate". The plan shall be signed and bear the seal of a registered land surveyor or civil engineer (with discipline). Any plans presented with the petition shall remain a part of the records of the board of Appeals. Pi If living quarters are to be remodeled, or areas are to be converted into living quarters, in addition to the plot plan, ten (10) copies of -the following described -plans shall be -furnished. t C 2 of 8 El. G1. A floor plan af-each floer-on-w-hich-remodeing-is4o.be Clone or areas-cGnvert-ed into -ling-quarters. 2. A floor plan showing the stairways, balls, doors opening into the halls, and exit doors of each floor or -floors where no remodeling or converting is to be done. 3. The plans and elevations shall show all existing work. All proposed work shall be shown in red. The size of each -clan shall -be 1-1" X 17" -or 47" X 22"; -it shall -be -dr -ate -t -o scale, '/4-inch-equals-o-ne foot. For petitions requesting variance (s) from the provisions of Section 7, Paragraphs 7.1, 7.2, 7.3 and 7.4 and Table 2 of the Zoning Bylaw for conveyance purposes only, a site plan, certified by a registered civil nenginetr or land surveyor (with discipline), of the parcel of land with a structure thereon being conveyed, U will beyacceptabie.to4he-bear-d-ef-A-ppea:ls-gr vided. a1. The dwelling(s); structure(s), orwere constructed prior to March 14, 1977. I The petition is not to allow construction or alteration to the dwelling(s), structure(s) or building(s) which will result -in -the -need-fo'r-the -issuance-of-a-building permit. 3. The site of the plan shall be not smaller than 11" X 17" it shall be drawn to scale, 1 inch equals 40 Cfeet. The existing area of the parcel, frontage, and existing setbacks of the dwelling(s), structure(s) or building(s) being conveyed -must be designated. 4. Proper space is to be provided on the site plans for the Board's signatures, as well as adequate space for the following information: Date of filing, date of public hearing, and date of approval. Show square footage of existing dw-e- ng -and show square -footage of proposed -addition -en -the site -plan. REQUIRE'NIENT - Legal Notification to abutters in conjunction with an applicants request for a hearing on a variance or special permit before the Board of Appeals is an absolute requirement. Lists of abutters are to be certified by the Town Assessor, advertised and cleared through the Administrative Secretary of the Board of Appeals,-in.due time, before -the .hearing date. (see note 4 of page 4). FAILURE TO COMPLY WITH THIS PROCEDURE WILL NOT ALLOW THE PETITION TO BE PLACED ON THE ZONING BOARD OF APPEALS AGENDA. 3 of 8 r r NOTES: r" 1. Variance(s) lapse if not exercised in one (1) year from date of decision. The variance(s) must Cbe recorded in the Registry of Deeds and a copy of same returned to the Zoning Board of Appeals and the Building Inspector. 1. a) A one time extension of six months may be granted if applied for, before the one year anniversary date has expired. 2. A Special Permit lapses if not exercised in two (2) years. This Special Permit must be C recorded in the -Registry -of Deeds -and -a-copy of same returned to -the Zoning Board of Appeals and the. Building Inspector. 3: All plans and;elevations presented with the petition shall remain a part of the records of the Board of Appeals. 4. The last day to petition the board of Appeals is the noon time 27 days in advance of Board meeting and befo-r-e-the-first -publicat-io-n-0-f-the-Legal Nctices-in-a-local newspaper. Notice of a public hearing is required notice shall be give by publication in a local newspaper in the town once in each of two successive weeks, the first publication to be not less than fourteen days before the day of the hearing. Regular Board of Appeals meetings are the second Tuesday of each calendar month. 5. The Administrative Secretary's business hours are as follows: Monday 9:00 ANI to 2:00 PM Tuesday 9-00 AM -to 1:00 -PM Wednesday 9:00 AM to 2:00 PM Thursday 9:00 AM to 2:00 PM Friday No _business Fours 4 of 8 0 CReceived by Town- r -k: JOYCE 14A TOWN Ci K NORTH ANDOVER TOWN OF NORTH ANDOVER, MASSACHUSETI� R Z 8 42 M fi CBOARD OF APPEALS APPLICATION FORREUEF-FRNI TEE ZONING ORDINANCE Applicant Mpn 7gPa1 ty Corporation Address 11 Old Boston Road l —Tewksbury, MA 01876 Tel. No. 978-851-9395 J 1. lic ant is hereby made: a) For aU4air-.6 iinrlgTr-ernents-o£Section 4 Paragraph 12ti? f and Table t & .of the Zoning Bylaws. 136.3(d) C b) For a Special Permit under Section____ Paragraph of the Zoning 8-ylaws l.� c) As a Party Aggrieved; for review of a decision made by the Building Inspector or other authority. d) Repetitive Petition Hearing..: u 2. a Premises affected are land and building(s) numbered Street. Cb) Premises affected area property with frontage on the North) South () East ( ) West ( ) side of Dale Street. C Street, and known as No. Map 37B, Lot #1, Dale Street. C) Premises affected are in Zoning District R-1 . and the premises affected have an area o f 1,305,493 square -feet-and frontage o f 501 & feet. 3. Ownership: a) Name and address of owner (if joint ownership, give all names): R. Ashton & Gwendolyn C. Smith, C/O Trustee Geoffrey Smith 15 Driftwood Drive, North Bradford, CT 06471 Date of Purchase -1-25-1 chdPrevious-OwnerLantern Corporation b) 1. If applicant is not owner, check his/her interest in premises: X Prospective Purchaser -Lessee Other C2. Letter of authorization for Variance/Special Permit required. 5 of 8 , 1 a C4. Site of proposed -herding: N/A frost; Feet -deep; C'; The principal points upon which I base my application are as follows: (must be stated in detail) See attached exhibits for more detail. (1) Property has 2 existing access driveways with culverts,one is currentyl being used as access. (2) Both driveway locations are in close proximity to jurisdictional wetlands. (3) No other reasonable means of access are available. (4),All Dale St. lots abutting this site have driveways that fall within n the rnngpryatinn sptharkG E(5) Granting relief would allow access to property, not otherwise available. (6) Applicant feels that relief is not necessary pursuant to 4.136.2(f� Table 2. I agree to pav the filing fee, advertising in newspaper, and incidental expenses* —Signature of Petitioner (s) 6 of Ell n Height stories; feet. a) Approximate-date-o-f-er-ectian N/A U b) Occupancy or use of each floor: N/A ac) Type of construction N/A 5. Has there been a previous appeal. under zoning, on these premises? No When 6. Description ofzzlief -qGug--Iat-o-n--tbis-pet-itian To build a roadway with all required details within the 75' conservation zone, if applicable. (See 4.136.2(f)Tables 1&2) Ell 7. Deed recorded in the Registry of Deeds in Book 912 'o. Page 187 & 188 Land Court Certificate -- o. -Book -Pate C'; The principal points upon which I base my application are as follows: (must be stated in detail) See attached exhibits for more detail. (1) Property has 2 existing access driveways with culverts,one is currentyl being used as access. (2) Both driveway locations are in close proximity to jurisdictional wetlands. (3) No other reasonable means of access are available. (4),All Dale St. lots abutting this site have driveways that fall within n the rnngpryatinn sptharkG E(5) Granting relief would allow access to property, not otherwise available. (6) Applicant feels that relief is not necessary pursuant to 4.136.2(f� Table 2. I agree to pav the filing fee, advertising in newspaper, and incidental expenses* —Signature of Petitioner (s) 6 of Ell n DESCRIPTION OF VARIANCE REQUESTED ZOl-D;GDISTRICT: R-1 Residential Required Setback ExistinQ Setback Relief or Area or ,area Requested Conservation ZpnP 751 Variac 0' - 75' Lot Dimension Area Street Frontage 50' & 186+/ Peet Front Setback (s` Side Setback (s) Rear Setback (s) Special Per= Request: 7 of 8 I ADDENDUM "A" PRINCIPAL POINTS 1. Property has been endorsed as an eight (8) Lot Subdivision, with 2 -cul-de-sac roadways. Seven (7) of the lots are buildable and one (1) is for conservation only. 2. Property has two existing means of access. The Westerly most access is currently used as a roadway for ingress and egress to the property. Both the east and west accesses have existing culverts that allow drainage under the current conditions. Culverts will remain after roadway improvements. (Exhibit "1") 3. Both access points are in close proximity to bordering vegetated wetlands (BVW). Both access points are within the 75' foot conservation buffer of the Watershed Protection Bylaw, as determined by the Planning Board. (Exhibit "2") 4. There is no reasonable alternative access point. Homes and other BVW areas surround the site. (See Exhibit "3" for Alternative Access Report) 0 11. Granting relief would allow access not otherwise available. This would not cause substantial detriment to the public good and nullify or substantially derogate from the spirit and intent of the Bylaw. Additional information from Attorney Joel Bard, Attorney Michael Gerstein and Elmer A. Pease, II is attached as Exhibit "6'. �I 5. Current property owners abutting the subject parcel have driveways or contiguous boundaries for alternative access that fall within the 75' foot conservation buffer. 6. Due to the soils conditions as shown in Exhibit "1", other access to the property is C� unavailable. 7. The unusual shape of this parcel, fronting on Dale Street in two locations of 50 +/- and 186+/- feet does not have direct access as do many home that are already built. Direct C access in the neighborhood as they currently exist affects the subject parcel not generally affected by these abutting properties. 8. A literal enforcement of the Bylaw would unjustly create a legal, equitable and financial Lam' L'I hardship as no reasonable use could be granted without benefit of access through the current westerly access point. �I l J 9. There is no filling of wetlands proposed or approved for this access. The Conservation Commission determined that there would be no adverse impact as a result of this project. The Conservation Commission, their engineer and the Administrator thoroughly reviewed and approved this project. The Order of Conditions are attached as Exhibit "4". 10. The Planning Board/Special Permit Granting Authority (SPGA) approved the Definitive Subdivision Plan and the required Special Permits for this project. The Board, their engineer, Department of Public Works and Planner thoroughly reviewed this project and determined there would be no adverse impact. The Conditions of Approval and the Special Permit are attached as Exhibit "5". 0 11. Granting relief would allow access not otherwise available. This would not cause substantial detriment to the public good and nullify or substantially derogate from the spirit and intent of the Bylaw. Additional information from Attorney Joel Bard, Attorney Michael Gerstein and Elmer A. Pease, II is attached as Exhibit "6'. �I r K r JAN 3 b 1993 CASE # TOWN OF NORTH ANDOVER ZONING BOARD OF ADJUSTMENT OWNER'S AFFIDAVIT I, the undersigned, owner of property located at Dale Street and identified as Man 37B - Lot #1. do hereby authorize MPG Real Co oration and its representative; 11 O1d Boston )adjewksbury.MA 01876 to make the following request with respect to the above-described property: Any and all requests for the approval of Berrington Place an 8 Lot subdivision with roadways and all improvements as shown on plans prepared by Allen & Mjor Associates Inc of Woburn. MA as maybe required by the Watershed Protection Bylaw and the Planning Board Please refer to Special Permit application and accompanying documentation for submittal of this re nest for ZBA consideration. R. Ashton & Gwendolyn C. Smith Signature w rustee Geoffrey Smith 15 Driftwood Dr. North Bradford, CT 06471 Address January_ 23 1998 Date nava« - "rJt -_Lr t,ttcZ11EiN6HULb ItL-1-S08-,S(2-0-Jb0 F411! r is I`iaLl 11 y i� NO . UU— vet �rrt�r••. � F' .02 i� t L'141;X, C�;RNJtA-IIwh ..'•' a eorlwcn .an duty ct:atliaht-i O,.Jee the tesla of Commonwealtr s of MaeaehuAeLt5 J •,+,: la.lat Its arod plot of but4x AS at a,ea t. tlf;Lun f. t ' M tyfiddle sex C.:+,n,r M%%`46J9etu. (:,r a: widcraaw paid, $. Ashton Sm1Lh rod ::uendule'r. C, Smith, Husband and ` enlnCL 1ty the Enti-rc ry of North Andover, tsatX CCunly, D'ea a sell(, ae t%:F M'al autt:(s:a taornnt:f U•Ot6vs" 1w0 certnin norctla of land w,iluated ii; Unlc SCreet in. ,. ani•! ,icrtit :,ndovcr, bounded and dencribcd as .,nIIoI Ya: C.I. NU. L Beginning At Clic Horthwtatlrly corner ot, lan,l ny%, or lonacrly itillncr, being; chow(, pa Luc Iwo. 17 A on••rian ct Appleton .states, :iale. Street. North ..ndvver, NON%;. uwtler, Lant«rr+ Corp.. Ua&lnver, Ralph U. Braceour, Ttarch 27, 11157'• tc,]d plan being reeordod in. ttuChorth District 01 ,.aaex fte$iatry ": ;K:tds as Plan NO. 5442; Chance runninL Northerly by a ctont wall end ].ah(; of CadOgnn seven hundred forty -flour and A:or, ur• lrss to an iron nape at land of Leland As shu•an 0n ,afr< hLnn; 1 wince, runninf. Easterly by a stone wall formirl. the Northerly bounf.nr'v of i.ot Nu. 2U on said plan and by n ditcl: forr.ing the t:ol-0,vrl.y boundary of Lot:,; No. 21 and 22 on said plan* the tee Centinuint; ty L(tl.d o:' said l .land az shown on "Plar, of Land in porta Andover 1;dV.A nutted by I)an`tl E. 11oAan Jr., ?ebbttnt•7 29, 19.`;6" recorded L the glomi, utstrtCt of hssex Ragistry of Det -da as rlan two. 5200 A total diattinre ur 2,025 feet -more or Lcas.ro tete .or•ttmr of tt at:one wall at int+,( of Rubcrt Mfl1tr an shown on eaid last. +waned plan; tile" u: `ur„In snd running' Suutherly and by said land of +A.Ller in pnrt by a stone wall, Itundred ninct.y-one anti 46/1tK: feet to o't'ht•r 1,.n,t of Itobart Hiller oK7 as ahown on eaid last panted -Lan; thence running kcaterly by Lhc Nurt:lcrly boundary of land vt ilobcrt 1_iller, t•hilie Millar, Ultitc and l:in,rt]c1A as'shown on esiJ 1,1et nuncdivc nantlrcd eiiittY auJ 91/lW fact to a otunc wull Ac la„ti al ]:alu,arn on said filen: t,t.!nct: vurnini; and rennin! Narnc�t•ly by t:te scone wnll 1,116 :a::d of SontJor•n, one hundred L'wchty-nine and r.0/1,.;; feet t6a 1.ortacuutcrl c-rttcr of said Sanborn lana, al: aL•rw1 on 0001 p:ut c.,eucc turnln•; end running aeaerrLy by tris 11orrtcc.rly Lu.ut•itwry yr ltnrt or ha,lyo—n and Perera as shown on said alar., tw, hundred c,sntV three rust tc• an i, fro- ;)Lpe at the Uorer,weszcrfy corner asid rorr,lt4: arid r:Jnnin;L Zouthcrly :;y the ,leaterly lint ui' said tarerr. :at At ctw.At on plan recorded IN,;. 3442 rcferrid to auuvc, a di.etance. of fuu- tauhlred thirty-,,ine oc,d ; lW f.: t... .J,J: iuroe: s eno�•t, ,m 0,1'.c last na:oed plan; L., n4c rte:mitt, rt`cut at r. E.,; ;,y a slant veli anti f!al.r �trect as shown or, aai.d l;,:l :.cured plan :r. ;c:n ml cvc.rset easuring forty-eevu” u„tt 74/l;o i'ecc, fel2r n'%/],tet west tRil•ty il,t and SUAJU mitt' rind fists ft:tet trchtctiv�ly to .!�„ti,nc bound ma 41101- en said pLan; t.,enec to:nine, er,d •t,t:t!fi,•• t:t a Fener&_ tiorth,rly dirtctiva try the, ci;rve of a pran.+sed road as+a! ov; ul: saki tAtir. l- two eouetea, metrsurint ;.wept/-si ar,L G >,/1<�, feet a.t,', tru•cc hundred :•hire/ slid Oo/l:v feetto a .lctie found sr tt„ r1'nrtl,csst•ir`:• corner of land f Antireocr, as ,ttoln on SOtA UFt nantid plan; r:ka'1:Cc t'urr,ilt; 'and runr.inti 4e—tterly by tile' 1,� o: +_.,nd of Andresen, I:irl:ham anti }lona ch,'rt IntnCred at,,' rorty -one fee: to .an.i ui eufcl grantee mpr•:4d r..A. ::mltl, on ase ,1 un; t,err_z .vrnin,I and rjnnin,• Eortlterly by land of ceid CrFt,tee nin, t;-r::t t vL Wore or Ices to the Nortneitaterly e,Dr%cr of asid Snfth :nn4; caence s.;•r• turrtln:: arc rut+ttin•1 ,icstcrly by Land oL 5:1(:1• :,-, at c'. o:. said Alen t Cut :,urldre6 cf tit b y-eig11E er.d LS/1,.0 Ire[ tc a P -cur, tt•,rur tu:•+,1-c: and runnir._1 in n Southwe4t<rly directl,n't,y a curve ::ovin: c .-ndlvs o: tfr,•rc hundred seventy feet, a dit,tarCc tunerec eighty-c_o coil v_,'l.,w stet t„ e art li ;,alt it, a ■tent u�il a, Hole ,tract as 1,\• shorn on SaLd plan: [nonce turnir.b a1+d rut,nine :Icrtnw_ctcrly t�j a atone uai: ar,e_ DaleStreet of�l,ty C;ve feet c,urc ,r Lcss a scant baud fa the JouthL•a4terly corner of Lot bo• 17 A as av�-: nsid •,len; tler.ee �n it reneral Hortllo,ute-iv dLreetio❑ Ly. C:,. `ovthznaLcrly t boundvey of Lot 17 A in e!Ir4e COVI'ati rn,„turrl:g U,ivty-one ane 4;"IW • Leet., nir.ety-four g -,rt ..3/LC•U feet n,.1 one nunered t• lrt: v • , And L ;5/:LU feat I- the Nurtlteoaterly carer of sol,? Let !'A SS 87.0-1 A(X.. 9 j 1$7 w 1 1 El ER3TE1 HOLb T=L J-E'l;t-:7?- 08 Elm `.i wnta 1� a: 1J :,u I�a.t1Ct� F'. +,+• maid rinn; ti.cuee turniltg and vulutfnL lorttt�tslctly Dy Lot 17 A rmid utt roncaltning14111 t30eacrealitendmoresur ix sleeeo� 1W feet to the (.eine o'. begllttllhg. PARCEL II be ate. shown As Lot Ila. L4 ue tale Saue4rly side of Streak er i 8 8 Ualc n cit North Andover cplen entitled 'Plan Land iI+isl Andover Naas. owned by unliel. L_ lsoflan : [t Jr. ';ebruary 9, 1956. Ssicl _ pLan beltlr. recorded in said rcl1srry as plan 110. t heftyo 12vGex ; more art'icularly bounded nite. dcAcrilxd as t2-, 11;, aged {tremia ;'.�. of HWT1tUAST,{'Rl.Y two hundred fifty feet more or :e.0 tr: ay Ale Stteeti' 3JUTIMASTi3?LY one hundret sixty eight feet .f I More or leas lay Lot Nu. 1.5 un said plan and ~k i' aowrliVes U(LY two Itun:tred twenty wn feet mono or Leas by land or Lurmcrly Nl•.i Eng 1 uuv and Power Company ns (shown on said plop. i Cutttainine 11,5.7u sq•.lare feet more a iLss according to said plan. `Y ' be -ink part of :he premirea cvnveycQ Cu chc.:raotur Corporatlun � by decd of Usniel k, t,ogau Jr. et ux dated April 16, 1•l 56 rec0rdecl in aald Iecglatry, tioe.b :151 1`a4Lje 3::6. SAirl nrealsea art eotn•eyed subjecL to a•taking by the L•satx County Cotwltietiuners for Lje lclocstivu of 1/A 1e 31:rcct, recorded in 6A:d kegietry, look ::9a, YA�tc 435, It, b4; far as :lie same affects wi.tltin described Ilrewiaet, U.c j licaning and int.etading, and" .teonveyit•p to the gr•ntlLeee of la all the nd 1t: North Andovtr i acby .Ivw• tanding o: record !n the name of Lantern Coryloraci..n wltetitcr or Oct the is i *A -K tneludad within LI1e boundaries ,.f tilt Above ttcaerited pareeLa. Said 131•ttafaaa are conveyed subject to the taxes fl•r. the current Vast- witiell rile j;tahLca& 1larcin 1 abajja:e u:tJ aLree to -.ay. i f i .,% r�: to :he yrdnter cuTpur tion -Mel-with con+said grantve; any and all rtdaaagnt abcvto ..h1::h It (nay h.,•ie)CSJit of the Taking ereferred to abe. referred j ii• 1..Pear•rnl 'Rctcr:un tilnrnpa `1 ,•:•cbl rt,. I••.•1 h.z lt: 3Untp1 .- in $:tilt ,.i S._JS.1(1_._.. i . Of.l \.:,1 e: ..1 a...1.: �•I:till 4.1 t:Li 1•�..: .' �.••, 1:..:..: :_ V.: .. ;nttl'u...... at fit miiltrflJ3 w4 rrOf, ua said Lr.::1t:1: ;Gulcxl,r,cN ' _ 6aa uused its eotpors+r seal to bt 6e.e:a adF.lud and t6eu pretee:j u be shard. ackaowkdeed and : deli—td it, i:rnttrcand WWI( ty Gaot•Z•e N. Ka.heaon, Jr. 'fvc a surer iu I'ree(derlt and, Aertloau;yauu+oetetd, lila tweet:y-"ftl• "•tri ,,• I• flay of - N+ireh In the year une tlw,und nl,e M,a;red trd a i xty . 1 51 «! and aWet1 In �.w [n [•reaves of 1 IAt71 LR1: CtiRi'J_f i.:.uN A X rt;e_dent and 11'ret6cr r v iJf aRldlitOntlltt117i7 ni l�nAa:trlula t77; � EAatx tt ?t:rch 25. 14 bU; r. . I T1+tn pertoualiv anP'4:a1 thr [Luse Pur:C :surge il. MA;t:cr.ult, ?Pea ldent w 'Ire Aaura aid-c4mowt„ I,;td l the Iertt•olr.l v.ttru:ant u. La 15+r 1,;c act and Jre•i >! i.i:: i i fU. (:JR.YUKA': 1 u1 . ) ( hdcrr mt ;1 a: ,'.r. '-.s: .. .>'. �`,')L' { PD Associates, LLC Real Estate Consultants 1600 Candia Road, Suite #7, Manchester, NH 03109 January 25, 1999 Planning Board Town of North Andover 30 School Street North Andover, MA 01845 Attn: Amy Dear Amy: Telephone #:(603)641-8200 Facsimile #:(603)641-8882 In my conversation with Kathleen this past week, she requested that I send her an updated abutters list, which I had signed by John Speidel in the Tax Assessor's Office. I have also enclosed the self-addressed stamped envelopes for the notices pursuant to her request. She has informed me that I am on the March 16th agenda. If you wouldn't mind, I would appreciate being notified of the approximate time and position on that evening's agenda. If you have any further questions or need any additional information, please feel free to call. Respectfully, 7 (mer A. Pease, II CPM, EA EAP/sp Encl. 1 =^ JAN Z G 1�°� ►; Page 1 of 4 a.r Dale Street Abutters List ...................•e. Subject Property: Map 37B Parcel #1, R. Ashton Smith, Estate, Dale Street, 30.92 Acres Map Parcel Name Address n U 37B 8 Donald C. Hillner c/o Donald and Maria 128 Dale Street 6&7 .9— Ashton R. Smith c/o 15 Driftwood Lane Geoffrey Smith North Bradford, CT 06471 �I 5 Gregory E. Garbick and Kathleen 190 Dale Street 4 Daniel Takesian and Joan Ellen 198 Dale Street. 3 Agnes E. McCollister 206 Dale Street D24 f James G. and Sandra J. Timmons 205 Dale Street D23 Charles R. Fiorino and Ellen L. 201 Dale Street j D 22 Augustine Salvetti and Grace R. 185 Dale Street 21 George A. Boutselis and r Antonia 90 Appleton Street Cj 27 10 Stephen A. Hay and Carol Eleanor M. 100 Appleton Street a32 1( James E Phelan and Ellen M. 97 Appleton Street a33 `k,' William W. Kelly and � Colleen Callage-Kelly 95 Appleton Street O34 Daniel W. McConaghy and Adele 59 Appleton Street [� 20 Lambert Revocable Trust . Clementine C. Lambert Trs. 58 Appleton Street C Page 2 of 4 Map Parcel Name Address 37B 19 r Terrie-Ann Cahalane 153 Dale Street 18 Vr Moynihan Family Trust C/o Mary R. Moynihan P.O. Box 273, 141 Dale St. North Andover 17 [`1' Philip G. Hunt & Madelyn M. 133 Dale Street 16 James A Anderson Jr. & Isabel D. 125 Dale Street 15 Harold R. Lynch & Lee G. 115 Dale Street 9 Joseph B. O'Connell & Carol 100 Dale Street 14 Harold R. Lynch 115 Dale Street 65 Town of North Andover 120 Main Street l 10 z, Shelly S. Shuman 130 Marbleridge Road 11 Eva E. Vielgolaski & Thomas R. 116 Marbleridge Road 12 Michael A. Holland & . Kelley L. 100 Marbleridge Road 64 James G. Timmons 205 Dale Street 37A 13 Jean I. Gray I, Lt., & �- S.M. & G.J Lafleur 96 Marbleridge Road 34 Gary A. Kelloway & Janet A. 136 Castlemere Place 45 Johaine Realty Trust P.O. Box 246, Andover MA John A. Sammartaro, Tr. 01810 46 - Barbara Grasso 104 Castlemere Place 47 James E. Rice & Corine G. 96 Castlemere Place Page 3 of 4 Map Parcel Name Address 37A 50 "r Connecticut Financial, Inc. P.O. Box 398, N. Andover 37 Town of Andover -----Parcel Not found 64 12 Jan Bajan & Stephanie 220 Dale Street 13 l Edward J. Morgan & Jacqueline M. 228 Dale Street 28 Christine M. Melvin 234 Dale Street 19 Michael W. Bubar & Virginia L. 240 Dale Street 30 Frederick R. White 242 Dale Street 27 Richard A. O'Toole 244 Dale Street 31 Harold Morley, Jr. 256 Dale Street 32 Harold Morley, Jr. & Julia C. Morley 256 Dale Street 23 Harold Morley & -Julia C. Morley 256 Dale Street 62 Fred P. Bernard & Elissa A. 10 Bear Hill Road 21 Herbert R Skane & Arlene E. 11 Bear Hill Road 110 Frank J. Lazzarino & Carolyn 477 Bear Hill Road 15 Linda A. Cagle 287 Dale Street 77 Bruce G. Watrous & Coleen M. 275 Dale Street 76 Stephen Querzoli & Lynne M. 259 Dale Street Map Parcel Name 64 14 James W. Goodwin & Sandra A. 8 Peter J. Piantidosi III 5 Stephen H. Taney & Cecilia Feeney -Taney 24 Fredrick J. McCarthy & Maureen W. 26 E.C.W. Trust Edward J. Welch, Tr. 25 P&M Realty Trust P.A. & M.W. Bryant Trs. 33 David C. Rand & Frances J. 16 John P. & Cecelia E. Sangermano 34 Danahy Family Trust Donna D. White, PE" & R.H. Danahy 64 Town of North Andover 9 Town of North Andover 136 Stewart 1996 Realty Trust Lora E.S. Stewart Trs. 69 Patricia A. Grimm & Christina L. Klein 70 Robert J. Kingsley & Joan L. 37A 27 ( Howard L. Kramer & Julia O. 28 George W. Desmet & Leah M. Page 4 of 4 Address 299 Dale Street 1 Millpond, North Andover 323 Dale Street 357 Dale Street 24 Prescott St. N. Andover 300 Dale Street 2.80 Dale Street 268 Dale Street 73 Pinehurst Street Methuen, MA 01844 12 Carriage Chase N. Andover 149 Coachman Lane 135 Coachman Lane 115 Coachman Lane 125 Coachman Lane 0 COMMONWEALTH OF MASSACHUSETTS REQUEST FOR REPETITIVE PETITION APPROVAL By Applicant -MPG Realty Corp. REQUEST FOR REPETITIVE PETITION HEARING NOW COMES, MPG Realty Corp., the applicant with an address of 11 Old Boston Road, Town of Tewksbury, Commonwealth of Massachusetts, 01867, by and through its Owner's Representative, Elmer A. Pease, Il, PD Associates, LLC, Real Estate Consultants, and requests a hearing regarding the denial of the Applicant's request for finding of applicability and/or variance application by the North Andover Zoning Board of Appeals. The applicant requests that this Board grant the Repetitive Petition Hearing pursuant to Section 10.8 of the North Andover Zoning Bylaw and M.G.L. ch. 40A, §16 and in support of its request the applicant states as follows: 1. This Board has jurisdiction in this matter pursuant to M.G.L. ch. 40A, § 16 which provides for this Boards review of the Zoning Board of Appeals decision on applicants request. 2. The Applicant is the Owner's Representative for R. Ashton & Gwendolyn C. Smith c/o Trustee Geoffrey Smith of 15 Driftwood Drive, North Bradford, Connecticut, 06471 which consists of a parcel of land of approximately thirty-one and fifty-eight/one hundredths (31.58) acres located in the Town of North Andover in the Residence 1 District and which has frontage by way of two accesses on Dale Street. 3. The subdivision was presented as the Berrington Place residential subdivision on Dale Street and identified as Map 37B, Lot #1. 4. 5. A 7. A proposed eight (8) lot residential subdivision, (seven (7) buildable lots & one (1) conservation lot), was first brought to the Planning Board for consideration and comment in 1997 by the Applicant. Since the Fall of 1997, the Applicant worked diligently to obtain the subdivision of the Smith Property. The Applicant and through its Consultant and Engineers, have represented the Smith Property before the Planning Board at all hearings on the proposed subdivision. The current status of the Applicants request is for subdivision of seven (7) buildable lots & one (1) conservation lot for the purpose of building single-family residential homes. The subdivision would leave approximately twelve and ninety-five/ one hundredths (12.95) acres or approximately forty-one (41%). percent of the property in conservationf,-open space. This parcel would be deeded to the Town of -North Andover or one of its committees. The subdivision merely seeks to allow the Applicant to utilize a portion of the property for an up -scale single-family residential home development consistent with other homes in the area. The Applicant concurrently with the Preliminary and Definitive Subdivision application process submitted a Notice of Intent to the Town of North Andover Conservation Commission. This application was also submitted in 1997. The Applicant and through its Consultant, Wetlands Scientist and Engineers, have represented the Smith Property before the Conservation Commission at all hearings on the proposed subdivision. During this period of time with both the Planning Board through the Definitive Subdivision process and the Conservation Commission through the Notice of Intent, the Applicant and its representatives provided written and verbal testimony 9. LJ ; that the proposed subdivision was properly designed and conformed with the l� spirit and intent of the Town of North Andover Zoning Bylaw, Rules and Regulations Governing the Subdivision of Land, and the Wetlands Protection Bylaw. 8. The Town of North Andover Planning Board and through its Planner, Kathleen Bradley Colwell and review engineer, John Chessia, PE and the Conservation i Commission and through its Conservation Administrator, Michael Howard and review engineer, John Chessia, PE were satisfied that the Applicant met its burden a on designing a subdivision that complied with their respective regulations. 9. The Town of North Andover Planning Board granted a special permit from the requirements of the North Andover Zoning Bylaw, Section 4.136 (b) (c) (d) of the 10. The Town of North Andover Planning Board granted approval of the Definitive Subdivision Plans for the proposed subdivision for 7 single-family residential lots, 0 with the applicant agreeing to dedicate the conservationP arcel to the Town. The I Planning Board voted to approve this Definitive Subdivision on April 21, 1998. It was signed by the Chairman on and received in the Town Clerks office on April �I 22 1998. 3 Watershed Protection District so as to allow the Applicant to build a roadway, detention basins waterline and within the non -discharge, non -disturbance and [� conservation buffer zones. The Planning Board voted to approve this special permit on April 21, 1998. It was received in the Town Clerks office on April 23, 1998. 10. The Town of North Andover Planning Board granted approval of the Definitive Subdivision Plans for the proposed subdivision for 7 single-family residential lots, 0 with the applicant agreeing to dedicate the conservationP arcel to the Town. The I Planning Board voted to approve this Definitive Subdivision on April 21, 1998. It was signed by the Chairman on and received in the Town Clerks office on April �I 22 1998. 3 11. 12. 13. 14 The Town of North Andover Conservation Commission granted approval for the Applicants Notice of Intent on December 17, 1997 and issued an Order of Conditions for the subdivision on January 7, 1998. On February 12, 1998 the Applicant submitted an application to the North Andover Zoning Board of Appeals for a determination of the applicability of Section 4.136 .3(d)(ii), and though Applicant questioned the applicability of this section, made such application to the Zoning Board of Appeals at the request of the Planning Board. Upon notification from the Acting Chairman of the Zoning Board of Appeals that the application was confusing, The Applicant agreed to withdraw the application and meet with members of the Board to determine better language for resubmittal. The Applicant, Elmer A. Pease ,II, its consultant, the Planner, Acting Chairman and a member of the Board met and determined more appropriate language the Applicant could use to move forward with the submittal of its application. 15. On March 18, 1998 the Applicant resubmitted its application to appear before the Zoning Board of Appeals to address the issue of applicability and if so determined, to request a variance for relief from 4.136.2(b) Table 1&2, 136.2(f) and 136.3(d) as stated on the application. Applicant inserted additional information into the application as well as provided a six (6) Exhibit Booklet for the Board to makes its consideration. 16. The hearing was held on April 4, 1998. After presentation by Applicant, its Attorney and Consultant the Board would not honor the Applicant's request for the determination of applicability of 4.136.2(b) Table 1&2, 136.2(f) and 136.3(d). The Board denied the variance without consideration of the applicability issue or the evidence submitted with the application or testimony given at the hearing. 17. The Applicant has filed an appeal of the Town of North Andover Zoning Board of Appeals decision with the Commonwealth of Massachusetts Land Court. This appeal is still in litigation. 18. The Planning Board at its April 21, 1998 meeting discussed and indeed considered including the roadway within the 75' area as part of the special permit based on its applicability under the non -disturbance buffer zone. The majority of the members of the Board decided to exclude this section out of the special permit and in its written approval, required the Applicant to go back to the Zoning Board of Appeals for the Variance. It was the direction of the Town of North Andover Planning Board to come back for a repetitive petition request once the plans were signed and recorded. 19. A Repetitive Petition request was made to the Planning Department on April 22, 1998, however, was subsequently withdrawn as an appeal was filed regarding the approval of the Definitive Subdivision. 20. The Planning Board signed the Definitive Plans on March 16,1999. This was done prior to the Repetitive Petition hearing held on that same evening. 21. At the request of the Planning Board at the Repetitive Petition Hearing and the Director of Planning and Economic Development on March 16, 1999, the Applicant was to provide additional information to the Board in support of its position. 22. The Applicant through its Consultant researched the Properties within the Watershed Protection District at the Town of North Andover's Assessors office to 5 a7 determine if any undeveloped parcels have the same unique configuration or shape characteristics. The Watershed Protection District comprises an overlay district of approximately 15-20% of the Town of North Andover. No undeveloped parcels were found that provided the same unique access characteristics of a pork chop shape lot as the Subject Parcel. 23. The Applicant through its Consultant researched the approved subdivisions in the Town of North Andover at the office of Planning and Economic Development. A list of approved subdivisions was provided by the Planning Department covering a period from 1992 through 1998. For the purposes of this request, a review of subdivisions from 1994 through 1998 were researched. A total of 28 subdivisions were checked for their location in the Watershed Protection District. Only two were found to be located in the District. The Leland subdivision (1994), however was submitted and approved prior to the enactment of Bylaw. Country Club Estates was subdivided in 1998 as part of a consolidation and resubdivision of some existing lots. One single lot showed access along a wetland, however, no evidence of a variance was found. 24. There were no parcels or approved subdivisions in the Watershed Protection District that have the same unique soils impact characteristics of the Subject Property. The Subject Property as stated at prior Planning Board Hearings, has bordering vegetated wetland (BVW) as determined by the Conservation Commission located to the Northwest, North, Northeast, East, Southeast, and South. Wetlands Preservation Inc. (WPI) found additional wetlands to West of the Subject Property on an abutting parcel. C t..s F125. The property Access is from two narrow strips of land. The secondary access strip extends from Dale Street to the Subject Property a distance of approximately Ll � Three Hundred Sixty (360') feet. This secondary access point is covered with U trees and brush and is bordered by wetlands the entire distance along its easterly side and over half of its westerly sideline. The primary access point, which is currently used for access via a driveway, is partially cleared and is only bordered by wetlands between stations 1+40 through 2+40, a distance of approximately 100 feet. 26. Further, and more importantly, residential homes surround the Subject Property to its south and west. The Subject Property has neither frontage on nor along any residential parcel to access its property. These residential lots that are existing lots of record are all developed with homes along Dale Street and Marbleridge Road. Further, no possible access is available along Castlemere or Carnage )j)4. Chase because of the beaver pond. An alternative access study was submitted to the Planning Board at the request of the Planner. A copy was also provided to the Zoning Board of Appeals in the March 18, 1998 submittal for a determination and/or variance. 27. The topography for the property is also quite unique with grades significant in many locations that create this band of Bordering Vegetated Wetlands (BV W) on three sides of the property and on both sides of each access. The grades as shown Eon the plans prepared by Merrimack Engineering and Allen & Major Associates is quite clear that topography and slopes are a natural occurrence that create this aunique characteristic. The low topography that create the wetlands to the E. Northwest, North, Northeast, East are extremely large and bordered by standing L. water. This will not allow any access to the upland portion of the property. The topographical features to the Southeast and South along the accesses create low areas designated as wetlands. More importantly, these grades are quite steep with changes in elevation of between 8 and 12 feet. This creates existing grades in excess of 15-20%. 28. It is the uniqueness of the shape, soils, and topographical features of this property that require the Applicant to request a variance. Applicant has clearly proven verbally and through testimony both verbal and written by its representatives that this parcel in entitled to relief. 29. The Applicant Made the Town of North Andover Zoning Board of Appeals aware Eof these characteristics during its hearing on April 14, 1998. The Applicant aproved through its application, submitted exhibits and colored presentation boards clearly these thresholds. Applicant and its representatives further testified at the hearing in reviewing the plans that the unique shape, topography and soils of the Subject Parcel clearly showed a hardship. Further, the Owner through its Trustee. clearly showed a financial hardship having submitted a letter to the Board and his C' subsequent testimony at the hearing. 0 30. The Applicants Attorney clearly showed that the granting of the variance would not derogate from the spirit and intent of the Bylaw as this property is unique as Estated above. The Watershed Protection District is an overlay District that covers approximately 15-20% of the Town of North Andover. Much of this area is zoned for Residential Use. Granting this variance would not "affect generally the zoning district in general" as it would continue to be used for residential single - Efamily homes. E .1 31 The literal enforcement of the Bylaw would create or "involve substantial hardship, both financial and otherwise, to the petitioner or applicant" because of the unique soils, topographical and slopes of the Subject Parcel. There were no other parcels or lots within the District that are affected as is the Subject Property. Granting relief would not cause substantial detriment to the public good, as the property would continue to be used for the development of upscale homes having no negative impact on surrounding property values. Granting relief would not nullify or substantially derogate from the spirit and intent of the Bylaw as this Section of the Bylaw does not affect all the accesses to existing homes in the district, subdivisions approved since 1994 (as stated above) and for the 80-85% of property owners in the Town of North Andover not governed by this Bylaw. 32. Applicant has provided plans submitted to the Town of North Andover Zoning Board of Appeals and the subsequent final Definitive Subdivision plans approved by the Town of North Andover Planning Board. The two sets of plans show specific and material changes relating to revisions requested by the Planner, Kathleen Bradley Colwell, John Chessia, PE, the Town's Review Engineer, the North Andover Department of Public Works and various members of the Planning Board at its meetings held on April 7, 1998 and April 21, 1998. A letter was sent by Elmer A. Pease, I1, the Applicants Consultant to the Planner, Kathleen Bradley Colwell addressing these comments on March 4, 1998. These comments were made after the submittal of the Zoning Board of'Appeals application on March 18, 1998. The actual plan changes were not reflected in the plan presentations made at the Town of North Andover Zoning Board of Appeals hearing held on April 14, 1998. The final plan changes were made for the April 33 34. 35. 21, 1998 hearing for final Definitive Subdivision approval of the Town of North Andover Planning Board. In the Applicants request for a Repetitive Petition Hearing pursuant to the Town of North Andover Zoning Bylaw Section 10.8 and M.G.L. 40A, § 16, the Applicant has provided to the Town of North Andover Planning Board through its Planning Department a list of specific and material changes to the plans and though its additional evidence to warrant consideration of its request to re -petition the North Andover Board of Appeals. The Applicant respectfully requests the Town of North Andover Planning Board find that the Applicant has proven its case that the Subject Parcel has unique characteristics owning to soils, topographical features and slopes as denied by the Town of North Andover Zoning Board of Appeals. The Applicant respectfully requests the Town of North Andover find that specific and material changes have occurred to the plans to warrant a vote by this Board to allow the Applicant to repetition the Town of North Andover Zoning Board of Appeals. Respectfully Submitted, MPG Realty Corp. By its Owner's Representative Elmer A. Pease, II PD Associates, LLC Real Estate Consultants 1600 Candia Road, Suite #7 Manchester, New Hampshire 03109 Research Location: Research Criteria: Lot Configuration Comparison Town of North Andover Assessors Office Locate undeveloped lots of Comparable shape, configuration with long narrow access in the Watershed Protection District. Map No. Lot No. Lot Size Condition Type Comments 90C N/A N/A N/A N/A No Comparable Lots 103 N/A NIA NIA N/A No Comparable Lots 104C 11 9.80 Developed Res. Used as SFH* 27 9.10 UnDev. Res. Part of Subdivision 36 5.60 Developed Res. 2 Homes, 6 Structures 62 N/A N/A NIA N/A No Comparable Lots 63 13 3.10 Developed Res. Used as SFH* 42 3.70 Developed Res. Used as SFH* 64 10 6.01 Developed Res. Used as SFH* 35 1 3.12 Developed Res. Used as SFH* 32 12.70 Developed Res. Used as SFH* 48 3.77 Developed Res. Used as SFH* 101 3.13 Developed Res. Used as SFH* 102 3.00 Developed,Res. Used as SFH* 104 3.77 Developed Res. Used as SFH* 36 1 87.62 Developed Res. Used as SFH* 3 62.37 Developed Res. Retirement Community 37A N/A N/A N/A N/A No. Comparable Lots 37B 1 31.58 UnDev. Res. Subject Property 54 2.82 Developed Res. Home, 2 Structures 37C 14 10.43 Developed Res. Home, 1 Structure 16 6.49 Developed Res. Used as SFH* 18 7.40 Developed Res. Home, 2 Structures 37D 24 N/A Developed Comm. Cemetery 97 5 6.16 UnDev. Res. SFL* 74 NIA NIA N/A N/A No Comparable Lots *SFH-Single Family Home **SFL-Sin le Family Lot 1 s co co m m m m m com m m m m m m m m m m m m m m m m m m m> m C 0 C 0 C 0 C 0 C 0 4) c 0 C 0 C 0 C 0 C 0 C 0 c 0 C 0 c 0 c 0 C 0 C 0 C 0 C 0 C 0 C 0 C 0 c 0 C 0 C 0 Z C 0 y Z Z Z Z Z> Z Z Z Z Z Z Z Z Z Z Z Z Z Z Z Z Z Z Z Z Z r_ m OL O N E v U 0 o o o o om o o 0 O 0.0 0 0 0 0 0 0 0 0 0 0 0 0 o o m o o Z Z Z Z Z> - Z Z Z Z Z Z Z Z Z Z Z Z Z Z Z Z Z Z Z Z >.. Z U m o Z U 0 Q Q Q U Cl a- IT 0 o 0 0 0 0 m g m m Z MQ Qmm mQ �n O)U v QQC) v m � ap u� (D o cD O u� N �n N M r- O v O (D f� O cD O �n N N o cD O O r- cD �r O c� o 0 m 0 oo 0 f� 0 n 0 o r v O O co O m m � to m .- r �- r r r r r r r r- r- V- ` E > O W.9 t .-: CO _ V Q- vl 4 c 0 orn al�� m ca � m (D c m a� ami m 4D c m m m��r m m ca alQ al'vlm J c �c U �- m L irm �; --- N m US U) -Y OQ m� c J �l�.m� C L pU mN 72 W �-p `U� W C O N O Z m til ca N> ;� m E O ` N `: C O p ` m m ca •� L m =_ N 'C d (� r.. (L CO_ O m C p C = m — M O L� p m to O '- O Z3 la `mom p L 0 _G 0 0 U �U(7U L mCo -O C E (D ��(AV C7COm m�mV m - m O O O O O O N H c 0 J LL co E O O cDMNNMr O co fl- 9TN NT 0) M M co .- LO NcDf�OM O 'd f - C O J C) 0 0 � is d (D (D>ca mn d a > Q (D � ... an 0> C13 ca - Eo _c ID c 0yW=d __ CO o U c 0- (D U O CO� W c U U N '0O J NCmpcO ' 0 m -0j 4) caO Uv >(ca O C= � E � mOn O co m m W-0 > 0 Co mto c O0 m m W� =3 At_)--5Z p m 0 ca w W p> >O >2>AOCAm0wOLLO.mO> o 0 c WOOmCO) L rn rn rn rn rn rn rn rn rn rn O m D D D a r I C N H H H x k W c i �11 Fit -R PD Associates, LLC Real Estate Consultants 704 Londonderry Turnpike, Auburn, NH 03032 March 4, 1998 North Andover Planhing Board 30 School Stroet North Andover. MA 01845 Ann, Kathleen Bradley Colwell RE: Dale Street Definitive Subdivision -Map 37B/Lot 01 Dear Kathleen; Telephone #:(603)611-8200 Facsimile #:(60.1)641-8882 Pursuant to your request and the comments made by the various board members, town review engineer, planning department and the DPW, please accept this letter as the applicants response_ 1 have prepared this letter in much the same way as the letter 1 submitted with the application. Engineering Comments: Sheet # or other 1. Names of Owners 1 -Cover Sheet 2. Ownership of 86 sf piece Wong Dale St. 2A 3. Show existing grades on profile at 25' offsets 48 & 4C 4. Permanent Benchmark (Rim Elev-Dale St. SW 48 5. Reacrve Strip -remains Unchanged 6. DPW Street Trees Next Section 7. 8. Lot Line reconfiguration per fax to John of 2-20-98 Water facilities 2A Next Section 9. Sewer Facilities Nett Section 10. C13 -3A to be moved outside drive 3A `. CDPW Comments: 1. Tapping Sleeve &. Valve notation 313 2. Eliminate sewer drops into SMH's 4B 3. Insert symbols at PC,a & PT's 2A 4. Remove Sidewalks 3A& 3B Planning Comments: 2.20-98 meeting / Issues letter 1. Defined the parameters of what the applicant is looking for Completed a 2. Anal within the Non -Discharge Zone by Special Permit Submitted 3. Non -Disturbance Zone by Special Permit Submitted 4, Conservation Zone -Submit to ZBA Submitted 5. WPI do AIM letters on Watershed Submitted -Impact Study 6. A. Recommendations -leaching pits move outside S 0' Completed 3A 7. B. I.,awns-outaide 100' Completed 3A 8. C. Detention Basins- all outside 75' Completed 3A (� 9. Zoning Board of Appeals clarification meeting Submitted new App. U 10. Site Walk w/ Planning Board Completed I Cc: Erik Heyland Ken Grandstafi Michael Gerstein 0 I 0 D Planning Comments at the 2-20-98 meeting I . Change note to reflect 250'400' Watershed Buffer limits Sheet t -Cover Sheet 2. Drainage under 136.B.ii under SP Submitted 3. Wetland Lines -Through RDA process Approval through NO] process 4 Floodplain reference- Not in FEMA Floodplain maps See attached sheet 5. Roadway width of 22'/ request to 24' w/ removal of sidewalks By Applicant 6. Remove sidewalks Completed Ref. 4C 7. All changes to be completed prior to Plan Endorsement Condition of Approval 8. Sprinklers -in all houses Sheet I -Cover Sheet 9. Permanent Boundary- move existing split rail fence 75' buffer Shown on 3A 10. Reset stonewall at entrance Det. Basin A-7 3B I think I have addressed all the issues presented and would be happy to answer any questions you may have. I really appreciate the assistance in getting the information prepared for the zoning Board of Appeals and setting up the meeting on the 25* of February. Respectfully submitted, Elmer A. Pease, 11 CPM, EA Owners Representative I Cc: Erik Heyland Ken Grandstafi Michael Gerstein 0 I 0 D lea AO 10 Lhto \\ \ a I f 1 1 ... i\.t Dry/ I if /gym t � � / I I I I 1 �I •� i I � \+\ �W \\\ Sim O� �Z IL $• \ ISI i \ ��\+ \\�\ \+t �� s0 �� I � N, .� � / K ��' of �� ,.a9 • � � �� � m $ 9\ _- I= �.��' / Ise -- � � _' • \ �' 1 �. / "$ � ' o. ;� /. '� � II I � � � �. y /WR 00 \ } / �/e� d', tib•/ // � / �ay��� * i �' —� � \ / {� � j '� � • l � ��s�;�+� - I 1 t as I 1 I � ��I %�\ /• ° �� -'- / � I x A �V. f. --J Iq QQ A mob. is� « $ o s$ o q L o s Cc 11 Li bb 4 4 h 4 p lea AO 10 Lhto \\ \ a I f 1 1 ... i\.t Dry/ I if /gym t � � / I I I I 1 �I •� i I � \+\ �W \\\ Sim O� �Z IL $• \ ISI i \ ��\+ \\�\ \+t �� s0 �� I � N, .� � / K ��' of �� ,.a9 • � � �� � m $ 9\ _- I= �.��' / Ise -- � � _' • \ �' 1 �. / "$ � ' o. ;� /. '� � II I � � � �. y /WR 00 \ } / �/e� d', tib•/ // � / �ay��� * i �' —� � \ / {� � j '� � • l � ��s�;�+� - I 1 t as I 1 I � ��I %�\ /• ° �� -'- / � I x A �V. f. --J m O w vi 4 a0 n O n � o 69 5 q� � _m ��=e m 0 cl Q ¢ 0, (: a a fotpa I Jpw /LTmt.bbvmtt �� z y � y` C '•4 �1 1 /I i j •1\ � � I� � \ 0 W � •�� o< W� UI O O r " <iJa<<iia� ^ 13 S 88 > N � cis 'C� Fm m�uf���gott��o Wim' Q h ���ba -a w g Nittz _ A�H d ww A cAal<m d ,\ a � b \ � n/ i i/ �iG /� x •4 I I \\ 1 f 1101 -N a s ss IS as 92 ss6 a6 0 W � •�� o< W� UI O O r " <iJa<<iia� ^ 13 S 88 > N � cis 'C� Fm m�uf���gott��o Wim' Q h ���ba -a w g Nittz _ A�H d ww A cAal<m d ,\ a � b \ � n/ i i/ �iG /� x •4 I I \\ 1 f 1101 -N tie fail.i s: ,?4 • ;fir; Z''' ,1 ro � a< Q C U f ^ O jz CP-,� o= w 04C, a Es 1 0 R4 aaaaft#0 = N l �yy�] F is Lil obi '�Z, b♦bN a . I _ . L7L .40 n«u I 1 \ t f f I f• c fl \ I I / I LU w it LU I �`Y 1 f 1// i / •_ \ I f \ / � \ a i 7 -�� � I \\�\\\1 f/ '\ )fjl�� // I � ' ' •` mac' � � �, �br- \ U < rf z �o< ` 1 1 /a \\\\\\— v W T oo . 52 It vs jig if I 1, 19 !lJ \ _ : �i r{� f d g do •� � . °� • '" � W \ � .� � �` / � �,�% 000 �+ J' " I \e 1 A r ^$�— -- --o —� — ---off. q•'�� / % � / �. � �„ Olt, Ar } i 1 a:I b. The certified decision has been recorded at the owner's expense in the Essex County y Registry of Deed's indexed in the grantor index under the name of the record owner, and noted on the owner's Certificate of Title; C. If the Special Permit involves registered property, the decision, at the owner's expense shall also be filed with the Recorder of the Land Court. 10.32 Temporary Permit The Board of Appeals may grant a temporary Special Permit for use or occupancy permit for a period of not more than one (1) year at a time, subject to a single renewal. Such permits shall be subject to conditions imposed by the Board related to 'safeguarding the character of the district affected and shall be processed in accordance with the proceduresprovided herein for the granting of Special Permits. 10.4 Variances and Appeals The Zoning Board of Appeals shall have power upon appeal to grant variances from the terms of this L` Zoning Bylaw where the Board finds that owing to circumstances relatingto soil conditions sloe or P, topography of the land or structures and especially affecting such land or structures but not affecting generally the zoning district in general, a literal enforcement of the provisions of this Bylaw will involve substantial hardship, financial or otherwise, to the petitioner or applicant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this Bylaw. Additionally, an appeal may be taken to the. Zoning Board of Appeals as provided herein by a person aggrieved by reason of his inability to obtain a permit or enforcement action from -the Building Inspector, by the Merrimack Valley Planning Commission, or by any person including an officer or Board of the Town of North Andover, or an abutting city or town; aggrieved by an order or decision of the Building Inspector or other administrative officials in violation of any provision of this Bylaw. Any petition for an appeal above must be taken within thirty. (30) days of the date of the order or decision that is being appealed by filing a notice of appeal, specifying the grounds thereof with the Town Clerk, who shall forthwith transmit copies of the appeal to such officer or Board, whose order or decision is being appealed, and to the Zoning Board of Appeals. Such officer or Board shall forthwith transmit to the Zoning Board of Appeals all documents and paper constituting the records of the case ' in which the appeal is taken. No petition for a variance or appeals shall be granted until a public hearing is held on the matter by the Zoning Board of Appeals within sixty-five (65) days after the Zoning Board of Appeals receives the petition from the Town Clerk. 2. The Zoning Board of Appeals must make its decision on a petition for a variance or appeal within seventy-five (75) days after the date of the petition is filed with the Town Clerk. In 130 C �} 10.8 Repetitive Petitions J When 1) the Planning Board denies an application for a Special Permit; or 2) the Board of Appeals denies a petition or a variance, no application on the same matter may be heard and acted favorably upon for a two (2) year period unless the following conditions are met: In the case of 1) above, four (4) of the five (5) members of the Planning Board find that there are specific and material. changes in the conditions upon which the previous unfavorable action was based, and describes such changes in the records of it proceedings, and only after a public hearing at which such consent will be considered and after notice is given to the parties in interest. In the case of 2) above, the Zoning Board of Appeals may not act favorably upon a petition which has g been previously denies within a two (2) year period of time unless four (4) of the five (5) members of the Zoning Board of Appeals find that there are specific and material changes in the conditions upon which the changes in the records of its proceedings and only after a public hearing, held by the Planning Board, at which consent to allow the petitioner to re -petition the Zoning Board of Appeals will be considered and after notice is given to parties in interest and only with four (4) of the five (5) members of the Planning Board voting to grant consent. 10.9 Withdrawal Without Prejudice Any petition for a variance which has been transmitted to the Zoning Board of Appeals or any application for a Special Permit which has been transmitted to the Planning Board may be withdrawn, without prejudice, by the petitioner prior to the publication of notice of a public hearing thereon, but thereafter be withdrawn without prejudice only with approval (majority vote) of the Zoning Board of Appeals or Planning Board respectively. SECTION 11 PLANNED DEVELOPMENT DISTRICT 11.1 Jurisdiction The Planning Board may grant a Special Permit for construction of a PDD in the following district: I -S. The Special Permit shall conform to this Bylaw and to G.L. Chapter 40A, Section 9, and to regulations which the Planning Board shall adopt for carrying out its duties hereunder. Except as set out hereunder , or in the Planning Board's regulations, or in a specific permit granted hereunder, the provisions of the Zoning Bylaw shall continue to govern. 11.2 Purpose The purpose of the PDD District is to provide for a mixture of land usage at designated locations at greater density and intensity than would normally be allowed provided that said land usage: a1. Does not detract from the livabilityand aesthetic qualities of the environment. 134 I -- 04/23/98 13:11 FAX 308 8886888 - NORTH ANDOVFA S. N rN ti +JrA TOWN GF t4ORTH ANUOVCr1 nM/1�SAG1it,J6�TTS L 1' HOARD OF APPEALS I RE;�,',':3 AYOWN OLCRK NORTH ANUOVER APR 21 12 of PR 'fib Any ad,Neal shall be flied dads of Mlog of this i filen yaftlyt IZOtdayit ader the NOTICE OF, RECISION in meoMce olUm Town Clerk. Property: bolo $t,, Map 378, I.00, (5ordngton Place) The Boaro of Appeals held a regular meeting on'TueWay evening, April i4, 1948, upon the applitftton of MPG Reaitlty Corp.. 11 Old Boaton Rd., Tewksbury. MA 01878, requesting a Vertrannaa for said promises located at Dale St., Map 978, Lot #1, (Harrington Place), North Andavdw, MA from the roquimmdents of Section 4, p4raoraphs 138.2 (h) & Qv): 138.2 (f): 138.3 (a), Of Table 1&2 to build a roadway w4h ail required details witnIn Ihaj 75' consarvativn zune, in R-1 Toning Dlotricf, The following members were present, Wallet F. Soule, Raymond Vtvenzio, Scott Karpinski, Ellen McIntyre and George Ealoy, The hearing was advertised In the Lawrence Tribune on 3/31190 & 4PISS, and all abutters were notified by regular rnail, upon a motion made by Walter Soule, who removed himself as stating chairman for this vote, aria ioconded try o"rge EAtiey, the Boom voted to asny a Vorlance seeking relief from Section 4, P: 430.2 (h) A (iv): 136.2 (0:136.3 (d), to build a roadwRy with all required detasllo within 1".. 75' consarvatiori zone. on the basis that the petitioner failed to show substantial hardahfp, financial yr atherwise, relating to unique soil conditions, relating to shape, or topography of land, as required under Chapter 40A, Saction 10 of the General Laws and Section 10.4 of the Zoning Byiaua;. Voting in favor of the dental: Wafter fi: Soule, Raymond Viwzlo. Srnit Karpinski. Bien McIntyre. GODrpe Earley. Post -it" brand tax transmittal memo' 1371 Melpsg�s ► C)?/4L To P • rner+e BOARD 4F APPPAl.6 / Raymond VKenzlo, aCtl Chairman s � Walter Soule. Zoning Board of Appease ALTERNATIVE ACCESS REPORT October 27, 1997 Location: 1 Dale Street, North Andover, MA Purpose Access for a proposed 7 lot Subdivision -Berrington Place I have been asked by the applicant, MPG Realty Corp., of I 1 Old Boston Road, Tewksbury, MA 01876 to prepare a report on the feasibility of an alternative access to the subject property proposed as a 7 lot subdivision known as Berrington Place. This request is pursuant to a review comment made several months ago by Ms. Kathleen Colwell, the Planning Director of the Town of North Andover to Mr. Kenneth Grandstaff.. Prior to this report, I have previously submitted a brief to the Town of North Andover reflecting my view that an alternative access is not necessary pursuant to state statute and Town of North Andover regulations. Further, my brief was supported by the applicant's attorneys from the law offices of Philips, Gerstein, Holber & Channen of 25 Kenoza Avenue, Haverhill MA 01830. These briefs are currently in the Town's possession. Having said that, this report will only serve to address the special requirements of the zoning regulations Section 4.136 Watershed Protection District, Subsection 4.c.iv. "proof that there is no reasonable alternative location outside the non -disturbance and/or non discharged buffer zones, whichever is applicable, for any discharge, structure, or activity, associated with the purposed proposed use to occur". The following three properties to the northwesterly boundary of the subject parcel owned by Johaine Realty Trust, Barbara Grasso and James Rice, are exclusive executive homes with outside amenities such as pools and tennis courts. Along the northern boundary are two other parcels owned by Connecticut Financial, enc. and the Town of North Andover (town farm) in which the common boundaries are located in standing water. The Morley property to the east of the subject site is bounded by a common wetland area as well. The following homes along the southerly boundary to the Dale Street, Appleton intersection, all abut the subject property, however, have wetlands that prevent access to the subject property. These parcels are owned by Harold Morley, Richard O'Toole, Frederick White, Michael and Virginia Biibar, Chrisifne Melvin, Edward and Jacqueline Morgan, Jan and Stephanie Bajan, Agnes E. McCallister, Daniel and Joan Takesian, Gregory E. and Kathleen Garbick and R. Ashton Smith. All of these properties are bounded by wetlands and the accompanying watershed setbacks. Along Dale Street to the northwest, which is a one-way street going east, is the R. Ashton �I Smith and the Donald and Maria Milner properties. These properties have single family residential homes and have wetlands or wetland setback restrictions. C aJThe sole property to the west of the subject site i > J s owned by Joseph and Carol O'Connell. Their home is located to the southeasterly portion of their property along the southwesterly boundary of the subject parcel. Their home is in such a location as to prevent reasonable access between the O'Connell and Hillner homes. In addressing the Reasonable Alternative Access issue, I spoke with Mr. O'Connell and determined that though the property was not on the market, he would be willing to sell the parcel for an asking price of $250,000.00 dollars. This is even after he commented that his home is only worth $125,000.00 to $150,000.00 dollars. He would not entertain a roadway going in between his home and the Hillner home. In a discussion with Curt Young of Wetlands Preservation, Inc. (WPI), he determined that there are wetlands along the O'Connell left front boundary as well as in the central and northwesterly sections of the property. This would prevent any access from further west. In addition to the price of the property being extremely unreasonable, there are two other more important issues that deal with any access from this location. The first issue is access at a common point that becomes a safety hazard. The roadway location to Dale Street would be at the end of a curve that has neither the site stopping distance (SSD) or reasonable intersection site distance (ISD) for traffic having to enter Dale Street and turn left. As I had mentioned before, all traffic entering on this portion of Dale Street must turn left because of its one-way direction. The second issue is the more likely impact of a roadway being wedged between and close to, the O'Connell and Hillner homes. This would result in a likely decrease in their property values. For these reasons, this property as well as any of the others abutting parcels are not reasonable accesses to the subject parcel. In closing, the subject site has two existing means of egress. Both were created when the property was previously subdivided. Both access' ire remaining just that, access' to the main portion of the property. Whether it be a driveway, private or public roadway, access 1 to the uplands to the northwest and central portion of the property can be gained from the s westerly access currently shown on plans submitted to theTown. Therefore, it is my opinion that no reasonable alternative access can be gained to the property and should not be considered in dealing with the briefs prepared by me or the applicant's attorney. Respectfully submitted, J xr� Elmer A. Pease, II CPM, EA cc: Mike Gerstein, Esq. Attachments EAP/sp j earnoand.doc DJK Two Dundee Park. Suite 301 �I Andover, MA 01810-3725 Office: 508-474-1994 Fax: 508-474-1778 December 30, 1997 Mr. Elmer A. Pease PD.Associates, LLC 704 Londonderry Turnpike Auburn, NH 03032 RE: Berrington Place Dale Street North Andover, MA Dear Elmer: Dermot J. Kelly Associates. Inc. Traffic Engineering/Transportation Planning As per your request, DJK Associates, Inc. has evaluated an altemative driveway location to the proposed Berrington Place 7 -lot residential subdivision. The current proposed driveway location is opposite #125 and #133 Dale Street. The alternative drive would be approximately 500 feet to west of the current proposed driveway location. Adjacent to the current proposed site drive location, Dale. Street is relatively tangent and level. At the alternative driveway location, Dale Street exhibits a large radius curve, which could negatively affect the available sight distance. It is generally undesirable to locate a new intersection on a section of roadway that exhibits a large radius curve, especially when an available tangent section of roadway exists. Should you have any additional questions, comments and/or if you require any additional information please do not hesitate to call me. Sincerely, DJK Assoicates, Inc. Dermot Kelly, P. E. DJK/ah cc: File \\4770\c\DJK\J0B\355-LI02 Elmer Pease.doc C' I] NEIGHBORHOOD MAP OF DALE STREET 4T v 40 X <Defautt> Markers, Length= 3 miies, 3000 feet Campbel Forest - 042* 38* 18.9- N. 071* 03.2 Berringtc CoPrigl-A (C) 1996. Earttivisi . Inc. 042'40'53.1'N. .v FYI, _ ' � „t r / _ (��'�•� _ ri�i+ _ �� •� �\ - 'moi :Y W I \ -..J -i .� •- V • rI't. ^ ♦J , ` , . -• JAS ` � ._ `' _ �� • _ � . :r^ f i (LY. _ f ��p, --51 Form 5 1S9S Z-1 OEP F•.te rto• 242-871 (lo r,w Urv+•K3M Qy UF1't Commonwealth c,ry,Town North Andover of Massachusetts MPG Realty Corp. aoobcanr Order of Conditions Massachusetts Wetlands Protection Act G.L. c. 131, saU and under the Town of North Andover's Bylaw Chapter 178 rcr NORTH ANDOVER CONSERVATION COKNISSION MPG Realty Corp. (Name of Applicant) 11 Old Boston Road Tewksbury, MA 01876 dress Order is issued and delivered as follows: l ~and delivery to acpficant or representative on Ity, certified mail, return receipt requested on �prcject is located at Lot 1 Dale Street c/o MPG Realty Trust (Name of property owner) Address Same January 8, 1998 to prccerty is recorded at the Registry of Nr?rrl,a rt? rceP C dic rage 912 187 & 188 C ate (if registered) Notice of Intent Icr this project was filed on July 3, 1997 -E :ut:ic he2r inc 'ryas closed on December 17, 1997 (Date) Gines v Idute) (Cute) Ica Ie) t.c_:.n Andover Conservation Commission has rE, ./re'%%eS'.r the (1C lICo nl rpt and ,tuns ang i,as held a .-UClic hearing on the-rclect. used on the ,nlorrnatrcn availacle Ic the '1 SCC at this time, the �r.�r r• has celerrnirteCi lh,-,t ��_... _ area on which the crccosed work is to be done is significant to [tie lcllo.%•nn^ ;rtleresrs in acccrcmice v.�ttt ,e Fresumcticns of Signific= ce �e!c in the reeulabons lcr each Area Sut,lec: to Protec,icrt Uncer the C'a.178 Prevention of Erosion & Sedimentation Cn.178Wi_dlife • (c^eck•as acGrccriatet: y� Pubic water suppiy Flcad control ❑ Lind containing sl.eillish Private water supply Slcrm damage o r_Pe•/nticn Fisheries Ground water supply PrevenUcri-al pollution-- ( Protection of wildlife habitat• $325.00 $112 50 ;c al Fiiirc Fee Submitted y yr i cwn Share 1 at Refund Cue S $212.50 City(Town Portion S ('/2 total) State Sham (�%: tori in Pxcess of 5..�) State Poruon S ('n total) L� DEP FILE # 242 - 871 �I Therefore, the North Andover Conservation Commission (hereafter the "NACC") hereby finds that the following conditions are necessary, in accordance with the Performance Standards set forth in the State Regulations, w� V the local ByLaw and Regulations, to protect those interests noted above. The NACC orders that all work shall be performed in accordance with said conditions and with the. Notice of Intent referenced above. To the extent that the following conditions modify or differ from the plans, specifications or other proposals submitted with the Notice of Intent, the conditions shall control. GENERAL CONDITIONS 1. Failure to comply with all conditions stated herein, and with all related statutes and other regulatory measures, shall be deemed cause to revoke or modify this Order. 2. This Order does not grant any property rights or any exclusive privileges; it does not authorize any injury to private property or invasion of property rights. However, the NACC, agent of the NACC or the Department of Environmental Protection (DEP) reserves the right to enter and inspect the property at all reasonable times, until a Certificate of Compliance is issued, i to evaluate compliance with this Order of Conditions, the Act, the North J Andover Wetland ByLaw and Regulations, 310 CMR 10.00, and may require any information, measurements, photographs, observations, and/or materials, or may require the submittal of any data or information deemed k necessary by the NACC for that evaluation. Further, work shall be halted on the site if the NACC, agent or DEP determines that any of the work is not in compliance with this Order of Conditions. Work shall not resume until the r , NACC is satisfied that the work will comply, and has so notified the applicant in writing. 3. This Order does not relieve the permittee or any other person of the necessity J of complying with all other applicable federal, state or local statutes, J ordinances, by-laws or regulations. �J 4. The work authorized hereunder shall be completed within three years from the date of this order. J 5. This Order may be extended by the issuing authority for one or more periods of up to one year each upon application to the issuing authority at least thirty days (30) prior to the expiration date of the Order (Refer to Section VIII (p.15) �v of the North Andover Wetland Regulations). ICAWinword\00C\242-871.dce 1 NACC 1/8/98 LDEP FILE # 242 - 871 6. The NACC reserves the right to amend this Order of Conditions after a legally advertised public hearing if plans or circumstances are changed or if new conditions or information is so warrant. 7. Where the Department of Environmental Protection (DEP) is requested to make a determination and to issue a Superseding Order, the Conservation Commission shall be a party to all agency proceedings and hearings before the Department. 8. The conditions of this decision shall apply to, and be binding upon, the applicant, owner, its employees and all successors and assigns in interest or control. These obligations shall be expressed in covenants in all deeds to succeeding owners of portions of the property. 9. The term "Applicant" as used in this Order of Conditions shall refer to the owner, any successor in interest or successor in control of the property referenced in the Notice of Intent, supporting documents and this Order of Conditions. The NACC shall be notified in writing within 30 days of all transfers of title of any portion of property that takes place prior to the issuance of a Certificate of Compliance. 10. The proposed work includes: Construction of a seven (7) lot residential subdivision including portions of the roadway, grading, utility installation and stormwater management systems. i C A W inword\OOC\242-871. doc 2 NACC 1/8/98 DEP FELE # 242 - 871 11. The work shall conform to the following (except as noted in the remainder of this document where revisions may be required): Notice of Intent filed by: MPG Realty Corporation 11 Old Boston Road Tewksbury, MA 01876 DATED 7/3/97 Drainage Report Prepared by: Allen & Major Associates, Inc. Entitled "Drainage Calculations for Berrington Place" DATED REV 11/5/97 Stormwater Operations and Maintenance Plan Prepared by: Wetlands Preservation, Inc. Entitled "Operations and Maintenance Plan DATED REV 11/14/97 Geo -Technical Evaluation Prepared by: JGI Jaworski Geotech, Inc. Entitled "Geotechnical Evaluation - Dale Street Retaining Walls." DATED 12/8/97 Plans prepared by: Allen & Major Associates, Inc. Entitled "Preliminary Plan of Land - Grading & Drainage Plan" Sheet 3A DATED REV 12/16/97 Entitled "Preliminary Plan of Land - Grading & Drainage Plan" Sheet 3B DATED REV 12/16/97 Entitled "Profile - Glenore Circle" Sheet 4C DATED 11/13/97 CAWinword1000\242-871.doc 3 NACC 1/8/98 0 DEP FILE # 242 - 871 0 13. y C u Entitled "Pre -development" Sheet D1 DATED REV 11/13/97 Entitled "Post -Development" Sheet D2 DATED REV 11/13/97 Entitled "Rational" Sheet D3 DATED REV 11/13/97 Entitled "Erosion Control Details" Sheet 9 DATED 11/13/97 The following wetland resource areas are affected by the proposed work: Buffer Zone to Bordering Vegetated WetlandB ese resource areas are significant to the interests of the Act and Town Lawhas noted above. These resource areas are also significant to the recreational and wildlife e interests of the ByLaw. The applicant has not attempted to overcome the presumption of significance of these resource areas to the identified interests. The NACC agrees with the applicant's delineation of the wetland resource areas on the site as shown on the plans dated referenced herein. Prior to the issuance of a Certificate of Compliance, the applicant will submit a pian showing the site's wetland delineation at a scale identical to the Town wetland map for this location. 14. The NACC finds that the intensive use of the upland areas and buffer zone Proposed on this site will cause further alteration of the wetland resource areas. In order to prevent any alteration of wetland resource areas a twenty five foot (25') No -Disturbance Zone (except at the roadway entrance in the vicinity of wetland flags A5 through A13 and B13 through B16) and a fifty foot (50') No -Construction Zone shall be established from the edge of the adjacent wetland resource area. The Conservation Administrator and/or other agents of the NACC do not have the authority to waive these setbacks as established under the local bylaw. No disturbance of existing grade, soils or vegetation is permitted in the No -Disturbance zone. (See Appendix 5 of the local Regulations). 015. The owners of the project and their successors in title, in the event the proceed to alter areas subject to the Commission's jurisdiction under the order, agree that the Order does not in itself impose upon the Town any * 0 C:1 W inword\OOC\242-871. doc a4 NACC 1/8/98 rye. i i DEP FILE # 242 871 responsibility to maintain the proposed drainage system and that said Town shall not be liable for any damage in the event of failure. By acceptance of this Order, the owners agree to indemnify and hold harmless to the Town and its residents for any damage attributable to alterations undertaken on this property pursuant to the Order. Issuance of these Conditions does not in any way imply or certify that the site or downstream areas will not be subject to flooding, storm damage or any other form of water damage. Maintenance of the drainage system, if accepted by the Town as part of a public way, becomes the responsibility of the Town. 16. There shall be no increase in the post development discharges from the storm drainage system or any other changes in post development conditions that alter the post development watershed boundaries as currently depicted in the Notice of Intent and approved by this Order of Conditions, unless specifically approved in writing by the Commission. 17. This document shall be included in all construction contracts, subcontracts, and specifications dealing with the work proposed and shall supersede any conflicting contract requirements. The applicant shall assure that all contractors, subcontractors, and other personnel performing the permitting work are fully aware of the permits terms and conditions. Thereafter, the contractor will be held jointly liable for any violation of this Order resulting from failure to comply with its conditions. PRIOR TO CONSTRUCTION 18. No work shall be undertaken until all administrative appeal periods from this Order have elapsed or, if such an appeal has been filed, until all proceedings before the Department or Court have been completed. 19. This Order shall be recorded by the applicant at the Registry of Deeds immediately after the expiration of all appeal periods. No work shall be undertaken until the Final Order has been recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. In the case of recorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land upon which the proposed work is to be done. In the case of registered land, the Final Order shall also be noted on the Land Court Certificate of Title of the owner of the land upon which the proposed work is to be done. The recording information shall be submitted to the North Andover Conservation Commission on the form at the end of this Order prior to commencement of the work. Any Order not recorded by the UCAWinword\00C\242-871.doc 5 NACC 1/8/98 DEP FILE # 242 - 871 applicant before work commences may be recorded by the NACC at the applicant's expense. 20. A sign shall be displayed at the site not less than two square feet or more than three square feet in size bearing the words "Massachusetts Department of Environmental Protection, File Number 242-871." 21. Any changes in the submitted plans caused by the applicant, another Board's decision or resulting from this Order of Conditions must be submitted to the NACC for approval prior to implementation. If the NACC finds said changes to be significant, the NACC will call for another public hearing (at the expense of the applicant). Within 21 days of the close of said public hearing the NACC will issue an amended or new Order of Conditions. Any errors found in the plans or information submitted by the applicant shall be �J considered as changes. The proposed project may be still under review by other local or state boards or agencies. This may result in changes to the project plans or wetland impacts. If any such changes occur a revised plan ' and an explanation of the revisions shall be submitted to the NACC for review and approval prior to the start of construction. No work shall begin on a project until written approval has been granted by the NACC. 22. It is -the responsibility of the applicant, owner, and/or successor(s) to ensure L� that all conditions of this Order of Conditions are complied with. The project engineer and contractors are to be provided with a copy of this Order of a Conditions and referenced documents before commencement of construction. 23. Prior to any work on-site the applicant shall submit to the NACC for approval a sequencing plan for construction and erosion and sedimentation control with supporting plans and details as appropriate. 24. Wetland flagging shall be checked prior to start of construction and shall be re-established where missing so that erosion control measures can be I properly placed and wetland impacts can be monitored. The proposed limit of work shall be shall be clearly marked with stakes or flags and shall be confirmed by the NACC. Such markers shall be checked and replaced as necessary and shall be maintained until all construction is complete. Workers should be informed that no use of machinery, storage of machinery or materials, stockpiling of soil, or construction activity is to occur beyond this line at any time. All flags used for the above purposes shall be of a color different from other flagging used on the site. r 25. A row of staked hay bales backed by trenched siltation fence shall be placed between all cons truction.areas and wei_lands. The erosion control Vil CAWinword\0oC\242-871.doc 6 NACC 1/8/98 � ty DEP FILE # 242 - 871 barrier will be properly installed and placed as shown on the plans approved and referenced herein and shall be inspected and approved by the NACC prior to the start of construction and shall remain intact until all disturbed areas have been permanently stabilized to prevent erosion. All erosion prevention and sedimentation protection measures found necessary during construction shall be implemented at the direction of the NACC. The NACC reserves the right to impose additional conditions on portions of this project to mitigate any impacts which could result from site erosion, or any noticeable degradation of surface water quality discharging from the site. For example, installation of erosion control measures may be required in areas not shown on the plan(s) referenced in this Order of Conditions. Should such installation be required by the NACC, they shall be installed within 48 hours of the Commissions request. 26. The applicant shall have on hand at the start of any soil disturbance, removal or stockpiling, a minimum of seventy five (75) hay bales and sufficient stakes for staking these bales (or an equivalent amount of silt fence). Said bales shall be used only for the control of emergency erosion problems, and shall not be used for the normal control of erosion. 27. A check payable to the Town of North Andover shall be provided in the amount of $39,000 which shall be in all respects satisfactory to Town Counsel, Town Treasurer, and the NACC, and shall be posted with the North Andover Town Treasure through the NACC before commencement of work. Said deposit of money shall be conditioned on the completion of all conditions hereof, shall be signed by a party or parties satisfactory to the NACC, and Town Counsel, and shall be released after completion of the project, provided that provision, satisfactory to the NACC, has been made for performance of any conditions which are of continuing nature. The applicant may propose a monetary release schedule keyed to completion of specific portions of the project for the NACC's review and approval. This condition is issued under the authority of the local ByLaw. 28. The applicant shall be responsible for placing signs on each parcel designating the applicable lot number as depicted on the plans approved and referenced herein. 29. The applicant shall designate a professional Wetland Scientist as an "Erosion Control Monitor" to oversee any emergency placement of controls and regular inspection or replacement of sedimentation control devices. The name and phone number of the erosion control monitor must be provided to the NACC in the event that this person has to be contacted, due to an emergency at the site, during any 24-hour period, including weekends. This person shall be given the authority to stop construction for erosion control CAWinword\00C\242-871.doc 7 NACC 1/8/98 it J b �a DEP FILE # 242 - 871 purposes. The erosion control monitor will be required to inspect all such devices and oversee cleaning and the proper disposal of waste products. Cleaning shall include removal of any entrapped silt. At least once during each week in which construction activities occurs on-site and for as long thereafter as ground remains unstabilized, the applicant shall submit a written report from the erosion control monitor to the NACC certifying that, to the best of his/her knowledge and belief based on a careful site inspection, all work is being performed in compliance with this Order of Conditions. The erosion control monitor must visually inspect all sedimentation/erosion control measures and assume responsibility for their maintenance on a weekly basis and that they are functioning as intended. In addition, all wetland resource areas must be visually inspected for siltation, turbiditv, and/or other water quality impacts. 30. Once these above mentioned pre -construction requirements are complete, the applicant shall contact the Conservation Office prior to site preparation or construction and shall arrange an on-site conference with an NACC representative, the contractor, the engineer, wetland scientist and the applicant to ensure that all of the Conditions of this Order are understood. This Order shall be included in all construction contracts., subcontracts, and specifications dealing with the work proposed and shall supersede any conflicting contract requirements. The applicant shall assure that all contractors, subcontractors and other personnel performing the permitted work are fully aware of the permit's terms and conditions. Thereafter, the contractor will be held jointly liable for any violation of this Order of Conditions resulting from failure to comply with its conditions. The applicant or contractor shall notify the NACC in writing of the identity of the on-site construction supervisor hired to coordinate construction and to ensure compliance with this Order. A reasonable period of time shall be provided as notice of the pre -construction meeting (e.g. 72 hours). SUBDIVISION LOT DEVELOPMENT 31. The NACC shall be notified in writing of any lot line or number changes with a copy of a plan showing these changes prior to any work on these lots. 1ECAWinword\00C\242-871.doc 8 NACC 1/8/98 F1 .3 DEP FILE # 242 - 871 DURING CONSTRUCTION 32. Immediately upon completion of each dwelling foundation, and prior to further construction activities associated with the site, the applicant shall complete a plan prepared by a Registered Professional Land Surveyor (R.P.L.S.) which accurately depicts the foundation location and it's proximity to wetland resource areas as approved under this Order of Conditions. Said plan shall be submitted to the Conservation Administrator for approval. 33. Upon beginning work, the applicant shall submit written progress reports every month detailing what work has been done in or near resource areas, and what work is anticipated to be done over the next period. This will update the construction sequence. 34. Approved de -watering activities anticipated at the roadway entrance location shall be supervised and witnessed by the designated erosion control monitor. This designee must be on-site while work specific to. the roadway retaining wall installation is occurring and until this section is complete. Dewatering activities shall be conducted as shown on the approved plans and shall be monitored daily by the erosion control monitor to ensure that sediment laden water is appropriately settled prior to discharge toward the wetland resource areas. No discharge of water is allowed directly into an area subject to jurisdiction of the Wetlands Protection Act and/or the North Andover Wetland ByLaw. If emergency de -watering requirements arise, the applicant shall submit a contingency plan to the Commission for approval which provides for the pumped water to be contained in a settling basin, to reduce turbidity prior to discharge into a resource area. 35. All catch basins shall contain oil/ gasoline traps, and it shall be a continuing condition of this order, even after a Certificate of Compliance is issued, that the oil/gasoline traps in the catch basins be maintained. All catch basins shall be free of all accumulated silt and debris before a Compliance is issued and the owner or his/her agent shall so specify in the request for Compliance. 36. The sewer lines on the site shall be tested for water tightness in accordance with North Andover DPW standards. 37. Any fill used in connection with this project shall be clean fill, containing no trash, refuse rubbish or debris, including but not limited to lumber, bricks, plaster, wire ,lath , paper, cardboard, pipe, tires, ashes, refrigerators, motor vehicles or parts on any of the foregoing. CAWinw0rdl00C\242-871.doc 9 NACC 1/8/98 DEP FILE # 242 - 871 38. No exposed area shall remain unfinished for more than thirty (30) days, unless approved by the NACC. 39. No regrading in the buffer zone shall have a slope steeper than 2:1 (horizontal: vertical). Slopes of steeper grade shall be rip -rapped to provide In permanent stabilization. 40. There shall be no stockpiling of soil or other materials within twenty-five (25) feet of any resource area. 41. Washings from concrete trucks, or surplus concrete, shall not be directed to, any drainage system, or wetland resource area. 42. All wasteenerated b , or associated with, the construction activity shall be g Y tY contained within the construction area, and away from any wetland resource ti area. There shall be no burying of spent construction materials or disposal of waste on the site by any other means. The applicant shall maintain dumpsters (or other suitable means) at the site for the storage and removal of such spent construction materials off-site. However, no trash dumpsters will be allowed within 50' of areas subject to protection under the Act or local ByLaw. 43. Accepted engineering and construction standards and procedures shall be followed In the completion of the project. 44. During and after work on this project, there shall be no discharge or spillage of fuel, or other pollutants into any wetland resource area. If there is a spill or discharge of any pollutant during any phase of construction the NACC shall be notified by the applicant within one (1) business day. No construction vehicles are to be stored within 100 feet of wetland resource areas, and no vehicle refueling, equipment lubrication, or maintenance is to be done within 100 feet of a resource area. AFTER CONSTRUCTION J 45. No underground storage of fuel oils shall be allowed on any lot within one - hundred (100) feet of any wetland resource area. This condition shall survive this Order of Conditions, and shall run with the title of the property. This condition is issued under the authority of the Town's Wetland protection BY Law. !� CAWinword\00C\242-871.doc 10 NACC 1/8/98 DEP FILE # 242 - 871 46. Fertilizers utilized for landscaping and lawn care shall be slow release, low - nitrogen types (< 5%), and shall not be used within 25 feet of a resource area. Pesticides and herbicides shall not be used within 100 feet of a wetland resource area. This condition is issued under the authority of the Town's Wetland Protection ByLaw and shall remain in perpetuity. 47. No road salt, sodium chloride, or other de-icing chemicals shall be used on paved surfaces, and any arrangement for snow removal shall so stipulate due to the importance of the site and wetlands. Permanent signs designating "No -Salt Zone" and "No -Snow Stockpiling Zones" shall be displayed in prominent locations to be approved by the Conservation Administrator and a representative from the Department of Public Works. 48. After completion of work, the applicant shall permanently mark the edge of ` wetland resource areas and the No -Disturbance Zone with signs or markers designating their sensitivity. This will ensure no further inadvertent encroachment into the wetland. These permanent markers are subject to review and approval by the NACC. The applicant shall instruct all agents to explain these markers to buyers/lessees/landscapers and all persons taking over the property from the applicant. 49. Upon completion of construction and grading, all disturbed areas located outside resource areas shall be stabilized permanently against erosion. This shall be done either by loaming and seeding according to SCS standards. If the latter course is chosen, stabilization will be considered complete once vegetative cover has been achieved. 50. Upon completion of the project, the applicant shall submit the following to the Conservation Commission as part of a request for a Certificate of Compliance: a. A letter from the applicant requesting a Certificate of Compliance. b. The name and address of the current landowner. c. Signed statements from the individual property owners shall be submitted with the request for a Certificate of Compliance indicating that they have read and understood the Order of Conditions prior to purchasing their property. d. The name and address of the individual/ trust or corporation to whom the compliance is to be granted. e. The street address and assessor's map/parcel number for the project. f. The DEP file number. g. A written statement from a Registered Professional Civil Engineer of the Commonwealth certifying that the work has been conducted as shown on the plan(s) and documents referenced above, and as conditioned by the Commission. CAWinword\00C\242-871.doc 11 NACC 1/8/98 0 DEP FILE #242-871 h. An "As -Built" plan prepared and signed and stamped by a Registered Professional Civil Engineer of the Commonwealth, for the public record. This plan will include: ➢ "As -Built" post -development elevations of all drainage & stormwater management structures constructed within 100 feet of any wetland resource area. ➢ "As -Built" post -development elevations and grades of all filled or altered wetland resource areas including the encompassing buffer zone which is regulated as a wetland under the local wetland bylaw. ➢ Distances from structures to wetland resource areas. Structures include (but are not limited to) septic systems, additions, fences, sheds, stone walls, pools, retaining walls, and approved decks. ➢ A line showing the limit of work and the extent of existing erosion control devices. "Work" includes anv disturbance of soils or vegetation. ➢ Location of all subsurface utilities entering the property. 52. The following special conditions shall survive the issuance of a Certificate of Compliance (COC) for this project; ➢ 25' No -Disturbance Zone and a 50' No -Construction Zone shall be established from the edge of adjacent wetland resource areas except in those locations approved under DEP # 242-871. Future work within 100' of existing wetland resource areas will require a separate filing with the NACC (refer to Section XI (page 18) of the Regulations for performance standards within these zones) The Conservation Administrator and/or other agents of the NACC do not have the authority to waive these setbacks as established under the local ByLaw; ➢ Maintenance of catch basins (Condition #35); ➢ Discharge or spillage of pollutants (Condition # 44); ➢ Prohibition of underground fuels (Condition #45); ➢ Limitations on the use of fertilizers, herbicides, road salts, de- icing compounds and pesticides (Conditions #46 -& 47). CAWinword\OOC\242-871.doc 112 NACC 1/8/98 DEP FILE # 242 - 871 ➢ The attached "Stormwater Operations and Management Plan', including Best Management Practices. No additional filings will be required to conduct maintenance of the above referenced system and plan. CAWinword\00C\242-87Ldoc 13 NACC 1/8/98 P..?. J242— Issued Ey IN Signatures ANDQV$R A 242-871 Conservation Commission This Order must be signed by a majority of the Conservation Commission. On this 7th day of January 1 1 998 . before me personally appeared Joseph W. Lynch, Jr. . to me known to be the person described in and who executed the foregoing instrument and acknowledged that he,she executed the same as hisiher free act and deed. nota.;, Pubic My commission expires Tha apoficant.:he owner. any person aggrieved by this Order. any owner of land aoutnng the land upon which the pr000sea work is to be Lf -I . rlcnc o: any Ian residents of the City or town in which such land is located are hereoy notified of their right to request the Department of =nv cnmental Quality Engineering to issue a Superseding Order. providing the request is made by certified mail or hand delivery to the Deoanment, with the apwopnwe filing fee and Fee Transmttal Form as provided in 110 CMII 10.00(7), within for, days from the date of ,ssuance of this Order. A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission and the applicant. If you wish. to appeal this decision under the Town Bylaw, a comp.iaint must be filed in Superior Court in accordance with M.G.L. ` Chapter 249 S.4 ERECORD, TNG INcORMATTON: Detach on dotted line and submit to the North Andover Conservation Comm._prior to commencement of work. ...............r:.....r....C............................................................................................................................................................... ...;.�..n_.d To ov.....e.._ ons....ervation Commission, 120 :lain Sc. , North Andover ,L 0184 tY Please be advised that the Order of Conditions for the project at 242- Deeds , Northern EssexFile Number 871 has been recorded at the Registry o1 and I II—)hasbeen noted in the c.'lain of litre of the allec:ed property in accordance with General Condition Bon . 19 J i If recorded land. the instrument numoer which identifies this transac:jon is 11 registered land. the document number which identifies this transaction is Signature Aor)bcant S sA f; Berrington Place Definitive Subdivision Conditional Approval The Planning Board herein APPROVES the Definitive Subdivision for a seven (7) lot subdivision known as Berrington Estates Place. MPG Realty Corporation, 11 Old Boston Road, Tewksbury, MA 01876, submitted this application on January 16, 1998. The area affected is located off of Dale Street in the R- l Zoning. District. The Planning Board makes the following findings as required by the Rules and Regulations Governing the Subdivision of Land: A. The Definitive Plan, dated January 16, 1998, last revised on 3/3/98, includes all ofthe infomtation indicated in Section 3 of the Rules and Regulations concerning the procedure for the submission of plans. B. The Definitive Plan adheres to all of the design standards as indicated in Section 7 of the Rules and Regulations except as noted in Condition 17 Waivers. C. The Definitive Plan is in conformance with the purpose and intent of the Subdivision Control Law. D. The Definitive Plan complies with all ofthe review comments submitted by various town departments in order to comply with state law, town by-laws and insure the public health, safety, and welfare ofthe town. Finally, the Planning Board finds that the Definitive Subdivision complies with Town Bylaw requirements so long as the following conditions are complied with: 1) Environmental Monitor: The applicant shall designate an independent environmental monitor who shall be chosen in consultant with the Planning Department. The Environmental Monitor must be available upon four- (4) hour's notice to inspect the site with the Planning Board designated official. The Environmental Monitor shall make weekly inspections ofthe project and file monthly reports to the Planning Board throughout the duration of the project. The monthly reports shall detail area of non-compliance, if any and actions taken to resolve these issues. 2) Prior to endorsement of the plans by the Planning Board the applicant shall adhere to the following: �I a) A Development Schedule must be submitted for signature by the Planning Board, which conforms to both Sections 4.2, and Section 8.7 of the North Andover Zoning Bylaw. The schedule must show building permit eiig.ibility by quarter for all lots. b A Site O Bond in the amount of five thousand '$5,000 dollars to be held b the Town Pew . t ) y of North Andover. The Site Opening Bond shall be in the fornt of a check made out to the I -E Town of North Andover that will be placed into an interest bearing escrow account. This amount shall cover any contingencies that might affect the public welfare such as site -opening. clearing, erosion control and performance of any other condition contained herein, prior to the posting of the Roadway Bond as described in Condition 4(d). This Site Opening Bond may at the discretion of the Planning Board be rolled over to cover other bonding considerations, be released in full, or partially retained in accordance with the recommendation of the Planning Staff as directed by a vote of the N APB. c) The final subdivision plans must be reviewed and approved by the outside consultant, the Planning Department and D.P.W. d) A covenant (FORM 1) securing all iots within the subdivision for the construction of ways and municipal services must be submitted to the Planning Board. Said lots may be released from the JJ covenant upon posting of security as requested in Condition 4(d). e) The applicant must submit to the Town Planner a FORM M for all utilities and easements placed on the subdivision. P, All application fees must be paid in full and verified by the Town Planner. g) The applicant must meet with the Town Planner in order to ensure that the plans conform to the Board's decision. A full set of final plans reflecting the changes outlined above, must be submitted to the Town Planner for review endorsement by the Planning Board, within ninety (90) days of filing the decision with the Town Clerk. h) The Subdivision Decision for this project must appear on the mylars. i) All documents shall be prepared at the expense of the applicant, as required by the Planning Board Rules and Regulations Governing the Subdivision of Land. 3) Prior to ANY WORK on the site, a) Once the subdivision plans have been recorded, the applicant must apply for and receive a variance for work within the 75' Conservation Zone under the North Andover Watershed Protection District Zoning Bylaw. No work will be allowed on the site until the variance has been issued. If the request for a variance is denied, this subdivision will be in violation of the North Andover Zoning Bylaw and the approval will be deemed rescinded. b) Yei?ow "Caution" tape must be placed along the limit of clearing and grading as shown on the J approved plan. The Planning Staff must be contacted prior to any cutting and or clearing on site. 11 c) All erosion control measures as shown on the plan and outlined in the erosion control plan must be in place and reviewed by the Town Planner. 4) Prior to any lots being released from the statutory covenants: a) Three (3) complete copies of the endorsed and recorded subdivision plans and one (1) certified copy of the following documents: recorded subdivision approval, recorded Covenant (FORM 1), recorded Growth Management Development Schedule, and recorded FORM M must be submitted to the Town Planner as proof of recording. b) All site erosion control measures required to protect off site properties from the effects of work on the lot proposed to be released must be in place. The "Town Planning Staff shall determine whether the applicant has satisfied the requirements of this provision prior to each lot release and shall report to the Planning Board prior to a vote to release said lot. c) The applicant must submit a lot release FORM J to the Planning Board for signature. d) A Performance Security in an amount to be determined by the Planning Board, upon the recommendation of the Department of Public Works, shall be posted to ensure completion of the work in accordance with the Plans approved as part of this conditional approval. The bond must be in the form of a check made out to the Town of North Andover. This check will then be placed in an interest bearing escrow account held by the Town. Items covered by the Bond may include, but shall not be limited to: i) as -built drawings ,:-Lj ii) sewers and utilities iii) roadway construction and maintenance iv) lot and site erosion control v) site screening and street trees vi) drainage facilities vii) site restoration -. viii) final site cleanup A Performance Security may be established for each phase individually. 5) Prior to a FORM U verification for an individual lot, the following information is required by the Planning Department: a) A "One Way" sign must be placed on Dale Street visible from the new subdivision roadway in a location approved by the DPW. b) The Planning Board will review the status of the Subdivision and vote to verify FORM t ---- --- --- ---- -- -- - .,A- applications as appropriate and in conformance with this decision. c) An as -built plan must be submitted to the Division of Public Works for review and approval prior to acceptance of the sewer appurtenances for use. d) If a sidewalk is to be constructed in front of the lot, then such sidewalk must be graded and staked at a minimum. e) The applicant must submit a certified copy of the recorded FORM J referred to in Condition 4(c) above. f) A plot plan for the lot in question must be submitted, which includes all of the following: i) location of the structure, ii) location of the driveways, iii) location of the septic systems if applicable, iv) location of all water and sewer lines, v) location of wetlands and any site improvements required under a NACC order of condition, vi) any grading called for on the lot, vii) all required zoning setbacks. viii) Location of any drainage, utility and other easements, g) All appropriate erosion control measures for the lot shall be in place. The Planning Board or Staff shall make final determination of appropriate measures. h) Lot numbers, visible from the roadways must be posted on all lots. 6) Prior to a Certificate of Occupancy being requested for an individual lot, the following shall be required: a) Sprinkler systems must be installed in all homes per NAFD requirements. b) The roadway must be constructed to at least binder coat of pavement to properly access the lot in question. Prior to construction of the binder coat, the applicant shall ensure that all required inspection and testing of water, sewer, and drainage facilities has been completed. The applicant must submit to the Town Planner an interim as -built, certified by a professional engineer, verifying that all utilities have been installed in accordance with the plans and profile sheet. c) All necessary permits and approvals for the lot in question shall be obtained from the North Andover Board of Health, and Conservation Comnnission. 4 •••• • ____ --- --- - naI"1 -,.fin^, .7 nllrl..v .— I — .. --- !f'��-/ �11 d) Pen anent house numbers must be posted on dwellings and be visible from the road. e) There shall be no driveways placed where stone bound monuments and/or catch basins are to be set. It shall be the developer's responsibility to assure the proper placement of the driveways regardless of whether individual lots are sold. The Planning Board requires any driveway to be moved at the owner's expense if such driveway is at a catch basin or stone bound position. 7) Prior to the final release of security retained for the site b the Town. the following shall be Y g completed by the applicant: a) An as -built plan and profile of the site shall be submitted to the DPW and Planning Department for review and approval. b) The applicant shall petition Town Meeting for public acceptance of the street. Prior to . submitting a warrant for such petition the applicant shall review the subdivision and all remaining work with the Town Planner and Department of Public Works. The Planning Board shall hold a portion of the subdivision bond for continued maintenance and operatiors until such time as Town Meeting has accepted (or rejected in favor of private ownership) the (� roadways. It shall be the developer's responsibility to insure that all proper easements have been l� recorded at the Registry of Deeds. 8) The :Applicant shall ensure that all Planning, Conservation Commission, Board of Health and Division of Public Works requirements are satisfied and that construction was in strict compliance with all approved plans and conditions. C9) The Town Planner will review any signs utilized for this project The applicant must obtain a sign permit as required by Section 6 of the Bylaw. The Planning Board shall approve any entrance structures. The applicant must remove any lighting used for the entrance signs prior to acceptance of the subdivision. 10) The applicant shall adhere to the following requirements of the Fire Department: a) Open burning is allowed by permit only after consultation with the Fire Department. Ob) Underground fuel storage will be allowed in conformance with the Town Bylaws and State Statute and only with the review and approval of the Fire Department and Conservation Commission. C11) There shall be no burying or dumping of construction material on site. L� 12) The location of any stutttp dumps on site must be pre -approved by the Planning Board. L, 13) The contractor shall contact Dig Safe at least 72 hours prior to commencing any excavation. • —- I --t:c ___ ___ naI't I..— — la A!'1I\. _ I.I I—..1 --- - T G7C =i_.l MW 1 G 14) Gas, Telephone, Cable, and Electric utilities shall be installed as. specified by the respective utility companies. 15) Any action by a Town Board, Commission, or Department which requires changes in the roadway alignment, placement of any easements or utilities, drainage facilities, grading or no cut lines, may be subject to modification by the Planning Board. 16) The following waivers from the Rules and Regulations Governing the Subdivision ofLand, North Andover, Massachusetts; revised February, 1989 have been granted by the Planning Board: a) Section 7(A)(4) Dead -End Streets: The Planning Board herein grants a waiver of approximately 100' for the street length. The applicant has demonstrated that the street length will have no adverse impact on the Watershed Protection District. b) Section 7(D)(2) Sidewalks: The sidewalks will abut the curb per requirement of DPW. c) Section 7(E)(1) Street Trees: The street trees will be placed outside of the ROW per requirement of DPW. d) These waivers have been granted in an effort to minimize the amount of cutting and filling required on site thereby decreasing the amount of erosion and siltation on site. e) The utilities must be installed and the streets or ways constructed to binder coat by ►'fin%, % 22, ZCx7(n (two years from the date permit granted). If the utilities are not installed, the streets or ways are not constructed to binder coat and the Planning Board has not granted an extension by the above referenced date, this definitive subdivision approval will be deemed to have lapsed. 17) This Definitive Subdivision Plan approval is based upon the following information which is incorporated into this decision by reference: a) Plans entitled: "Definitive Plan of Land — Berington Place'', ten sheets dated January l 6, 1998 last revised 313!98. Prepared by Allen & Major, Woburn MA b) Reports entitled: i) "Statement of Environmental. and Community Impact', dated January 15, 1998. - it) "Water. Quality and Best Management Practices (AMP) Evaluation.". Berrington Place, Dale Street, North Andover, Massachusetts, dated July 14, 6 �,••- � �...r-c c�c�r, �r,c - nan •curs-� .�ann[�uti u-.�nwi min- rn ua-�7-.,td�-1 1997, revised October 8, 1997. Conservation Administrator Director of Public Works Health Administrator Building Inspector Police Chief Fire Chief Assessor Applicant Engineer File Berrington Estates - subdivision 7 E" Notice to APPLICAYr 'jt.aN CLERK and Cartlfication of Artie.. of Planning 9asrd ' on Definitd a Subdivision P1An entitlad: Berrington Place �. By. Allen & Major Associates, Inc. dated January 16, lg gg w r .0♦ F s The North Arudrver Plaruii.ng Saar -4 l.as voted to APPRDV:; said plan, sub, ect to the following ccnditicrs: ' I. That the record owners of the subject lad forthwith execute and record a "covenant rt;rdn$ with the land", or otherwise provide aecu.-iiy ;or the cc .L, at.uctior. of was and the u;stallation of municipal ser -rices wi:`sin said st;b- dirisioc, all as proviced by G.L. c. 41, S. 81-U. n 2. 'that al? such constructicn ead installations shs-U :�z &U respects conform to the gcvernimg C'ules a 4 :ep�l .t3OIIs of tbia Board. 3. That, as required by the -North Andover Board of Raalth in its report to this Boardr.no buyiing or other structure sha11 be built o; '_acrd u p pen Lots �, as shown on said Plan without the prior consez~,, of sa{d Hoard of Health. k � ..Other co nd.ti utis �' -o ry opo > . Za Lha cveat that no a ppeal shall have been take:., f: oa said tpprcva, withi a� twentp d y3 from this date, the }forth Andover Planniaa Boa---' wi.11 forthwith trartafter endorse its formal apgraval upon said plan. F • • s t F • ♦ • F • F M i F F � ♦ ♦ • • • F ♦ M ♦ i • ! P ♦ s • � • a f T ,' bo :'th over ? Boa.. -d b � A.a?T�CV"�.J a1 fllaa, or he o�rir;g i e ons: Richard S. Rowen A.I�ESITI DEV. CORP. Fax:1 -5CO-851-9366 Apr 30 '98 10:40 P.01/08 Town of North Andover 199& OFFICE OF COMMUNITY DEVELOPMENT AND SERVICES } . 34 School Street Notch Andover, Massachusetts 0 f 84 s �. MU AM 1. SCOT �SS�cl+usti�� Director rac.�1 NOTICE OF DECISION z Any appeal shall be filled within (20) days after the w m date of filling this Notice in the Office of the Town o...�� Cleric. --: <-- Date April 23, 1998 Date of Hearing 3/17/98, 4/7/98 b 421/98 Petition of HPC, Realty corporation Premises affected Referring to the above petition for a special permit from the requirements of the North AndovP fttershed Protection District so as to allow to build a roadway, vatexline and detention basing within the non discharge, non disturbance and conservation buffer zones. After a public hearing given on the above date, the Planning Board voted to APPROVE the Watershed Special Permit based upon the following conditions: CC: Director of Public Works Building Inspector Natural Resource/Land Use Planner Health Sanitarian Assessors Police Chief Fire Chief Applicant Engineer Towns Outside Ccnsultant File interested Parties CONSERVATION -(919)6889530 • HF_dLTH • (979) 688•)540 Signe '�St. ! (.-�+t�0,�� W-1 Richard S.Rowen. Chairman Alison Lescarbeau V. Chairman John -Simons, Clerk Richard Nardella Joseph V. Mahoney Planning Board ' PLtNNING - (9i8) 688-9535 *BI:ILDINCnFFICE . (97B) 688.1)545 - *ZONiNC BOARD OC' APPFALS - (914 9) 689.9641 1 *1J6 MAIN STREET y H. rit:>l i 1 utv. l UKt . Fax Hpr 30 ' ,-:e 10:41 ETown of North Andover OMCE OF E COMMUNITY DEVELOPMENT AND SERVICES • 30 School street VII.LIAM 1. SCOTT North Andover, Massachusetts 01845 Director aAp1'123, 1998 ;vis. Joyce Bradshaw Town Clerk �I 120 Main Street North Andover, MA 01845 C! Re: Watershed Special Permit -Lot 1 Dale Street EDear Ms. Bradshaw P. 02/08 s -k o ,. The North Andover Planning Board held a public hearing on Tuesday evening March 17, 1998 at 7:30 p.m. in the Department of public Works, upon the application of Lot I Dale Street, North Ell Andover, Ma 01845 to request a special permit under Section 1.436 (3) (b) (c) (d) of the Watershed Protection District of the North Andover Zoning Bylaw. The legal notice was C properly advertised in the North Andover Citizen on January 28 & February 4, 1998 and all parties of interest were duly notif<ed. The following members were present: Richard Rowen, Chairman, Alison Lescarbeau, Vice Chairman, John Simons, Cleric, Joseph V. Mahoney and CRichard Nardella. The petitioner was requesting a special permit to allow to construct a roadway, waterline and Edetention basins within the non discharge. non disturbance and conservation buffer zones. The premises affected is Lot I Dale Street in the Residential - 1 (R-1) Zoning District and the Watershed Protection District. Elmer Pease and Eric Heyland of Allen &: Major Associates were present to represent Lot 1 Dale Street. Mr. Pease highlighted the boundaries on the plan Mr. Pease stated that they moved the C detention basin outside of the 75' conservation zone. Nis. Colwell stated that there is deadline for the subdivision for the April 7, 1998 meeting. Iver. Rowen stated that we can't approve the subdivision with out the special permit. Ms. Colwell stated that we still have not received DPW's E,' comments. Mr, Rowen asked Ms. Colwell if they had any outstanding issues that she knows of Nis. Colwell stated that there were not any for the subdivision, Kerry I/IcCollister of 306 Dale Street, had concerns with the detention basin and culverts discharging onto his property from the Bear 1iiIl subdivison. An abutter of 128 Dale Street had concerns with the excavation and the removal of the culverts. EIIARD Or APPEALS 688.9541 BUILDING 688-9543 CONSERVkhoN 689-9531)" HEALTH 688-9540 PLA+V1viNG 698-933< E, A.MESITI DEV. CORP. Fax:1-508-851-9366 Apr 30 '98 10:41 P.03/08 Mr. Nardella asked how big the culverts are now. lvir. Pease stated that they are 12". Dave Rand showed the Board pictures. Mr. Nardella asked what D.PW's comments are. Ms. Colwell went over DPW's concerns. Mr. Nardella asked ifDPW has responded to any concerns of the abutters. Mr. NfcCollister stated that he has spoken to Lill Hmurciak, and he;s unaware of the J lateral culverts. 1�•. McCollister stated that he doesn't understand how the can put the waterline under the culverts. Mr. McCollister also stated that they were told the runoff from Bear Hill t� would not be a problem, it seems to him that part of the Boards job is to protect the existing homeowners. Mr. Rowea stated that we don't have to make the applicants solve the existing Problems. Dazs Takesian of 398 Dale Street, stated that if you put up homes then the water will have no place to go. +X%e already have Bear all's water runoff. Mr. Takesian stated that their bbi�ackyards are filled with water up to their knees and with any serious r ain they won't have a backyard. Mr. Pease stated that we have already gone through all this with ConCom and have done several tests. Mr. Pease stated that Mr. Chessia has reviewed the Stcrm Water Management and we have addressed every concern they had. Mr. Pease stated that any other concerns with Planning, there isn't anything we can do. The Beaver Pond is downstream. Sandra Timmons of =0S Dale Street, stated that when Bear Hill was Put' n there was supposed to baffle be a dry retention area put in and now the pipe is gone. Dave Rand of 280 Dale Street, Tstated that he has looked for the plans for the dry retention area's for Bear HEI but, can't find them. This would have been built for I00 year storm and if the pipe was there it would hold up the water but, I believe a homeowner •a removed it. Mr. Rowen asked if a homeowner definitely removed the pipe. Mr, Rand stated that he can't say that for sure. Mr. Rowen stated that the applicants are required to ensure they don't create problems but they are not responsible for curing the Bear Hill problem, vir. Simons stated that the assumptions may not be correct because :r your not taking ail the potential areas to a count. Mr. Pease stated that we have answered all these same questions. Mr. Pease stated that they have to make sure that the water drains on their property correctly. Mr. Nardella asked Ms. Colwell if Mr. Chessia has any more cornments on this parcel. NIS. Colwell stated that there were no more comments for Storm Water Mwnagemert and these same issues were discussed at the ConCom meetings. Dave Rand of "SO Dale Street, stated that in one weeks time the beavers put back all the dams. Mr. Rand stated that he renewed his permit to take down 100 vards of the dam. Mr. Rand stated that if the situation is not resolved we will be under water. NIr. Rowen stated that he understands and if the review is correct this development is not going to have any impact on the situation. Mr. Takesian stated that we don't have a problem with the beavers like Mr. Rand we have a problem with the water coming onto ,,ur property. Mr. Rowen stated that we are doing the best we can. Mr. Takesian stated that they will have a big problem with the impacts of the subdivision. Mr. Rowen stated that he won't let this subdivision go forward if they are going to cause harm to the y abutters. Mr. Rowen stated that the applicants will not make the problem worse. lair. Pease stated that even the Town's Eneineer stated that the problem will not get worse. Mr. Rand asked why no oae from DPW or John Chessia has come out to see this problem with Bear Hill. Mr. Rowen suggested that they address their problems to Mr. Chessia. Ms. Colwell stated that they fl R MESITI DD). (DR.P. Fax :1-508- 8-51-9366 �pr 30 '�e, 10:42 P.04/08 should address their concerns to tate Planning Department and theta we ,,viil forward iherrt to, Chessia. rV , Continued until April 7, 1998, The North Andover Planning, Burd held a regular Meeting on April 7, 1998 the following members were present: Richard Rowen, Chairm&n, Alison Lescarbeau, Vice Chairman, John: Simons, Clerk, Joseph Mahoney, Richard Nardella & Alberto Angles,* Associate Member. -Kathleen Bradley Colwell, Town Planner was also present. IVIS. Colwell stated that there are no remaining issues with this filing. Nls. Colwell stated that we, can't issue a decision until ZBA grants them a variance, Or a motion by Mr. Nardella, seconded by Ms. Lescarbeau, the Board voted unanimously to close the Public 'rearing and direct staff to draft a decision. The North Andover Planning Board held a regular meeting on April ` 1993. T';Ie :ollowin; members were present: Richard Rowen, Chairman, Alison Lescarbeau, Vice Chairman, Joscph Mahoney & Adberto Angles, associate Member. Kathleen Bradley Colwell, Town Planter was - also present. LEOn a motion by',W. Angles, seconded by Vlx. Nlahoney, the Board voted ut:anirnousy to approve the draft decision as amended for Lot I Dale Street. Izi Attached are the conditions. Sincerely, Richard S. Rowen, Chairman North Andover 'Planning Board i A. !ESITI ICU. CORP Fax: 1-508-851-9366 Apr 30 '98 10:43 P. 05/08- Berrington 5/08 Berrington place Special Permit - Watershed Protection District The Planning Board makes the following findings regarding the application of i G Realty Corporation. I 1 Old Boston Road, Tewksbury, MA 01876, dated February 20,1998, requesting a Speciai Psrniit. under Section 4.136 of the Zoning By -Law of the North Andover Zor ' o l3yiaw to alloy+; activities which cause a change in topography and grade, vegetation removal azxd surface and subsurface discharge of storm water ruroff within the Non -Disturbance Zone and surface and sub- surike discharge of stormwater withizz the Non -Discharge Zone of the Watershed Protection District. FINI MNGS OF FACT: x , Ia accordance with 4.136(4) the Planx;itlg Board makes the finding that the intent of the Bylaw, as well as its specibc criteria, are met. Specifically the Planning Board finds: 1. That as a result of the proposed construction in corqunction with other uses nearby, there will not be any significant degradation of the quality or quantity of water in or entering Lake Cochichewick. The Planning Board bases its findings on the following facts: Y a) All of the homes will be connected to the Town sewer system; b) storm water mitigation will catch and treat g all storm water drainage, C) the limit of cleating is restricted to the minimum necessary to construct the driveway; d) a construction phasing plan and emergency response plan are required. e) All of the proposed dwellings are located entirely outside of the non -disturbance zone. 2. that there is no reasonable alternative location outside the Non -Discharge Buffer Zone for any discharge, structure or activity, associated with the proposed drivewav construction as the !ot is located within the Non -Discharge Zone. In accordance with Section 1, 0331 of the North Andover Zoning Bylaw. the Planning Board makes the following findings: A. The specific site is an appropriate location for the proposed else as :ill feasible stormwater and erosion controls have been placed on the site; B. The use will not adversely affect the neighborhood as the lot is located in a resident;al zone: C. There will be no nuisance or serious hazard to ,,-ehic!es or pedestrians; M F -j r R. MES ITI DEV. C -EW. Fax:1-508-851-9366 Rpt' 30 '98 10:43 P. 06/08 D. Adequate and appropriate facilities are provided for the prober operation of the proposed use; E. Tl;e Planning Board also makes a specific finding that the use is in harmony with the general purpose and intent or the North Andover Zoning Bylaw. Upon reaching the above findings, the Planning Board approves this Special Permit based upon the following conditions: SPECIAL, CONDITIONS: I . This decision must be tiled with t, e North Essex Registry of Deeds. The tb [Iovr`i:zg izzfomnatiou is tucluded as part of this decision: a) Plans entitled: `Vefiniti;a Plan of Lard - Berizgton Place", ten sheets dated January 16, 1998 last revised 313/98. Prepared by Alen & Major, Woburn, 1'4A b) .Reports entitled: i) "Statement of Environmentai and Community Impact", dated January 15, 1998. H) "Water Qualit;r and Best &i;:natgement Practices (BMP) Evaluation", Berrington Place, Dale Street, North Andover, Nl ssachusetts, dated July 14. 1997, re,6sed October 8, 1991. C) The T own Planner shall approve any changes made to these plans. Any charges t ~ deemed substantial by the Town. Planner would require a public aearubg and modification by the Planning Board 2. Prior to any work or site: a) The limit of clearing line on each lot must be marked in the field with yellow caution tape and :Host be reviewed and approved by the Tovvr. Phazuier. b) A performance guarantee of ten thousand ($10,000) dollars in the form of a check made out to the Town of North Andover must be posted to insure that construction wihl tame piace in accordance with the pians and the conditions of this decision and to ensure tlmt the as -built plana will be submitted. C.) All erosion control measures as shown on theplan must be in place and reviewed by the Town Planner. d; The site shall have received all necessary pe=lts and approvals from the North 2 A. i ESI T I DEV. C9RP Fax: 1-a08-r>�.1-9366 App 30 '98 10:44 P. 07/08 Andover Conservation Commission, Board of Health, and the Deinert of Public Works and be in compliance with the above permits and approva;s. I Prior to Verification of the FORM 1U (Building Permit lssuance): a.) Prior to the verificat on of the FORM U for Lot 7, the applicant must propose pernllatient boundary to be located along the lk:iit clearing. The boundar-i tray take the form of a w, -AL fence, or shrubs to be approved by the Tcwn Planner. This will provide a pe,, ent &-%undary along the 75' conser./ation zone on :his lot. 4. Prior to verification of a C:ert:ficate of Occupancy: a) '.':for to Occupancy of Lot 7, the perrnarent boundary props sed in Condition � i a) above must be constructed. b) No pesticides. fertilizers_ or chermcals shat be used (n ,awn care or maintenance. This restriction shall apply and be binding on all current and Lture owners. their heirs. _ud rtitustrators. successors and assigns, and shall be incorporated within all subsequent deeds to the premises. 5. Prior to release of the Peiformance Bond: a) A Conservation Restriction enforceable by the Town of North. Andover through its Comervatior, Cornrrissio.a ttat;st be placed on Lot 8. 'The Coase; vation Commission mast approve the terms and conditions of this restriction. b) The applicant shall su )rrrit a certifi?d copy of an as -built plan that shows all construction i lcluc:ing taPographv, sewer !i.*tes. storm water mitigation trenches and Other pertinent site features. This as -built ply a shall be submitted to the Town Planner for approval and shall be-tairped by either a Registered Professional Land Surveyor or Practicing E.nguzeer in Massachusetts. c) the Planning Board must by a rimiority vote make a rindkig that the site is Lz conf'bn-,=ce with the approved plats 6. Any stockpiles of earth must be covered with a tarp and contained by hay bales and silt tenee if tl�ie piles are to remain on tze site for Iouger than t..vo weeks. 7. In no instance shall the, applicant's proposed construction be allowed to #unher impact the site than as proposed on the plan referenced in C.onditioti: # L 8. No open burning shah be done except as is permitted during burning seasar. under the hire Department regulations. 3 H. MESITI DEV. CCW. Fax:1pr .50 'mss IU;4t) x.08/08 9. The Contractor shall contact Dig Sale at least 72 hotzs prior to commencing excavation. 10. The provisions cif this conditional approval shall apply to and be binding upon the applicant, it's employees and all successors and assign in interest or control. 11. Thu oernut shall be deemed to have lapsed after a two -(2) year period from the date aeon which the Special Permit was granted unless substantial use or construction has con -L -n raced. c; Director of Public Works Building lnspm-tcr Health Agent Assessor Conurvation Administrator Police Officer Fire Chief Applicant Engineer rile Berrington E;stzes - Watershed 4 w 0 0 0 LI lul LEONARD KOPELMAN KoPELMAN AND PAIGE, P. C. DONALD G. PAICC CLI2AOCTH A. LANE ATTORNEYS AT LAW JOYCE FRANK JOHN W. 01OR010 31 5T. JAMES AVENUE BAROARA J. 5AIN1 ANDNE JOEL B. BARD EVERETT J. HARDER BOSTON, ►AASSACHUSCTTS 02116.4102 PATRICK J. COSTELLO JOSEPH L. TEHAN. JR BOSTON OFFICE ANNE -MARIE M. HYLAND (6171 556.0007 THERESA M. DOWDY FAIL 4417) 654.1735 WILLIAM HEWIO 111 NORTHAMPTON OFFICE DEBORAH A. ELIAUON 14131 5658032 JEANNE 3, MCKNIGHr JUDITH C. CUTLER WORCESTER OFFICE RICHARD BOWEN 1508) 752-0203 November 21, 1997 KATHLEEN M. O'DONNELL DAVID J. DONE9K1 BANDRA CHARTON (LANA M QUIRK JOHN RICHARD HUCKSAM. JR. SUSAN M. CALLAHAN BRIAN W. RILEY JOHN J. KENNEY. JR. ROBERT PATTEN MARY L. GIORGIO KATHLCCM C. CONNOLLY MICHCLC C. RANOAZ20 PETER J. FEUERBACH MARY JO HARRIa THOMAS W. MCENANEY JONATHAN M. SILVERSTEIN TIMOTHY J. ERVIN KATHARINE I. GOREE CHRISTOPHER J. POLLART BY FACSIMILE - (978*1688-9542FPD � '-�--. . Tuts. Kathleen Bradley Colwell . Town Planner NOV 2 4 W7 North Andover Town Hall 120 Main Street tYNINGR,!APT) North Andover, MA 01845 Re: Berrington Estates Subdivision - Interpretation of Watershed Protection District Bylaw and related Questions Dear Ms. Colwell: You have requested all opinion regarding several issues raised by the applicant's attorney . in regard to the proposed Berrington Estates subdivision. It is my understanding that, in particular, you.seek claritication as to: 1) whether the Watershed Protection District Bylaw (the "Bylaxv") affects this proposed subdivision; ?) whether the applicant, if required to obtain a variance, should obtain that variance from the Planning Board or from the Zoning Board of Appeals; and 3) what role the Conservation Comilussion will play with respect to this proposed subdivision prucess. Briefly, in response to these questions, it is my opinion that: 1) the Watershed Protection District Bylaw will affect any lot(s) the applicant records after October 24, 1994, the effective date of the Bylaw; 2) if the applicant is required to obtain a variance from any part of the Zoning Bylaw, including the Watershed Protection District Bylaw, the Zoning Board of Appeals will be the proper authority to issue such a variance; and i) the Conservation Commission will be responsible for enforcing the Town's general (i.e., non-zoning)u'etlands Bylaw and the State Wetlands Protection Act, but not the Watershed Protection District Bylaw which will be enforced by the Planning Board. PRINTED ON RECYCLED PAPER __ - .. .. .... - - .-........v .1, 1-11 -4 TC _ 71 T 571F; -%T -UL[. I� KOPELMAN AND PAIGE, P.C. C Ms. Kathleen Bradley Colwell Town Planner November 21, 1997 Page 2 Amlication of'the October. 1994 Watershed Protection District Bylaw The facts as I understand them are as follows. The applicant seeks to subdivide a parcel of property which he has owned since prior to the effective date of the Watershed Protection a District Bylaw. However, before ile actually obtains subdivision approval for this property, he is proposing to build a road into the center of it; lie intends to later- use this road as the access into the- subdivision. This propost;d road viill undisputedly cress a non -disturbance buffer -one as defined in the Watershed Protection District Bylaw. He hopes that by building the road prior to I completing the subdivision process; he will avoid the Watershed Protection District Bylaw requirements because the road will have been built on a Int which was in existence before October 24, 1994. In my opinion, the applicant's property will not be subject to the restrictions of the Watershed Protection District By- law until the applicant records or registers the propertyas consisting of rluw lots. That is, in my opinion the Bylaw requirements only apply to those lots recorded or reuistered after October 24, 1994. Since the applicant's lot was in existence before that date, it is my opinion that it is not subject to the Bylaw. Furthermore. in my opinion; merely l=, proposing to subdivide the lot does not trigger the restrictions under the Bylaw. In my opinion, inion, the language of the Bylaw clearly states that it is applicable only to those lots recorded and registered after October 24, 1997. Therefore, in my opinion, until the applicant records or reizisters new lots of the subdivision, the Bylaw does not apply. As a result, whether the Bylaw will apply or not in this particular case depends largely on how the applicant chooses to proceed. �I it is possible that the applicant could complete the subdivision process, including construction of the road, without recording any of the lots, i.e., by covenanting to secure the construction of the subdivision road, thereby avoiding the necessity of recording the lots until after construction is complete. On the other hand, it is possible he will record the lots prior to the completion of construction, (after posting a bond or due to another circumstance), thereby triggering the Bylaw requirements, in my opinion. In summary, it is my opinion that once the new lots arc recorded, the Bylaw will become applicable, but work performed un (lie existing, "unsubdivided" lot will not be subject to the Bylaw. EVariance Procedures r With respect to the second question, it is my opinion that if the applicant should require a variance ti'unr the pruvisions of the Watershed Protection District Bylaw, he must obtain such a variance from the Zoning Board of Appeals. In a letter dated July 23, 1997, the applicant's attorney seems to indicate he believes the Planning Board would be the proper authority from which to obtain a variance. In my opinion, this position is mistaken. While it is true that pursuant to the Watershed Protection District Bylaw, the Plattttinb Board is empowered to hear and act on Special permit requests, nothing alters the exclusive authority given to-filie 7.oning=Board of. Appeals to hear and decide variance requests. `-^ -' 77.,nc o00 ornc •nan inner .lannn�]Fd Un-AONI ATV -:7T 1=36-ZT-uLIC' KOPELMAN AND PAIGE, P.C. Ms. Kathleen Bradley Colwell Town Planner November 21, 1997 Page 3 Conservation Commission Role The third question appears to ask what role and authority the Conservation Commission �\ has with respect to processing this subdivision request. In my opinion, the Conservation Commission will conduct a review which is separate from that of the Planning Board and Zoning Board of Appeals. The Conservation Commission will review the applicant's plan to ensure cumpliance with the Tuwn's Wetlands Bylaw and State Wetlands Protection Act. The Planning Board (and Zoning Board of.Appeals, if necessary) will review the plan with respect to the Watershed Protection District Bylaw and all other applicable zoning and subdivision provisions, rules and regulations. Should you have further questions regarding this matter, please do not hesitate to contact me. Very truly yours, Joel B. Bard JBBIKAWatg cc: Town Manager Board of Selectmen 3 GB 18inandi9999 +- %- -+ 7v—r-1-- o00 one -nan -uJn--% ..taAODUW U1..AON dZ£=Zt 86-21-uleC Herben P. Phillips. PC LAW OFFICES OF Michael A. Gersrein ///•,' Russe M. Holber T/llllUlS, 6ast6i, Holter & C&men Russell S. Channen it Jane M. Owens Triano Ronald N. Beauregard 25 Kenoza Avenue 9 Haverhill, MA 01830 Kevin P. Rauseo Tel: (978) 374-1131 /(800) 457.6912 ■ Fax: (978) 372.3086 of counsel: John T. Pollano Gerald M. Lewis October 20, 1997 William J. Scott Director of Commurit, Development and Services 146 Main Street North Andover, MA 01845 Re: Berrington Estates Subdivision Dale and Appleton Streets North Andover, Massachusetts Dear Mr. Scott: I had previously written to you on July 23, 1997 stating the position of my client, MPG Realty Corp., and its desire to proceed with the above referenced subdivision. I am enclosing a further copy of such correspondence and am requesting again that Town Counsel issue an opinion, consistent with the position I have taken, that no further access points to the above property would be necessary. I would be more than happy to contact Town Counsel directly, although I am requesting that yoti proceed as quickly as possible to obtain such opinion so that my client can proceed in its endeavors. Vecy tn>ly yours, Michael A. Gerstein MAG/If cc: MPG Realty Corp. Elmer Pease Kathleen Bradley Colwell All attorneys admitted in Massachusetts. Holber, Beauregard and Rauseo admitted also in New Hampshire. Holber admitted also in Maine. Other office: 32 Saco Avenue, P.O. Box W, old orchard, ME 04064 Reply to Haverhill oNlce only Herbert P. Phillips. PC. Michael A. Gersten Stuart M. Holber Russell S. Channen Jane M. Owens Triano Ronald N. Beauregard K"n P. Rauseo OJ Co ---- John T. Pollano LAW OFFICES OF T/4s, 60-ske ,? molter & Clown . 25 Kenoza Avenue ■ Haverhill, MA 01830 ■ Tel. (508) 374.1131 ■ Fax (508) 372-3086 William J. Scott Director of Community Development and Services Town of North Andover 146 Main Street North Andover, MA 01845 Re: "Smith Property" Dale and Appleton Streets North Andover, Massachusetts Dear Mr. Scott: r' r' ••- Ju y 23, 1997 Please be informed this office represents MPG Realty Corp. relative to its desire to subdivide the above property. I have received a copy of the letter of Kathleen Bradley Colwell, Town Planner, dated April 24, 1997 relative to her position that my client would need another access point to the property and, if not, would require a variance from the Zoning Board of Appeals. I have had occasion to review my client's file, the Town of North Andover Zoning Bylaws, the Wetlands Protection Bylaw, and the Wetlands Regulations for the Town of North Andover. I have also examined the title to the property, and I am of the belief that town counsel will concur that a variance will not be required. I am listing herewith my reasons and would request you submit this letter to Town counsel for his/her review and comments. It is my client's further hope and desire to proceed with the subdivision in an. expeditious manner, and I believe town counsel should be involved to address these concerns currently. Pursuant to the provisions of the Zoning By -Laws, and, in particular, Section 4.136 dealing with "Watershed Protection District", it is stated,under 4: I36.2.f, "the provisions relating to the _ establishment of the Conservation Zone and the enlargement of the non -disturbance zone and the non -disturbance zones shall only apply to lots recorded and registered after the date of the enactment of this amendment." (October 24, 1994). Please be aware that the Smith Property in .question was purchased March 25, 1960 as recorded at Book 912, Page 187 of the Essex North District Registry of Deeds, a copy of which deed I am enclosing herewith. It is certainly acknowledged that the North Andover Conservation Commission is empowered by the Wetlands Protection Bylaw to preserve and protect the wetland resource area, and to adopt All attorneys admitted in Massachusetts. Holber and 8eauregard admitted also in New Hampshire. Orders of Conditions which are necessary to regulate its responsibility. The Conservation Commission does have the authority to waive strict compliance with its regulations, when in its judgment, such action would be consistent with the intent and purposes of the Bylaw. I certainly acknowledge that my client, as an applicant, has the burden of proving. that the grant of a waiver is consistent with the intent and purposes of the Bylaw. I wish to further acknowledge that the proposed subdivision and its current access points are in the non -disturbance buffer zone, although the following uses shall be allowed within such zone only by Special Permit, issued pursuant to Section 4 of the Watershed Protection District Bylaw. I . Any activities which cause a change in topography or grade; 2. Vegetation removal or cutting, other than in connection with agriculture uses or maintenance of a landscape area. 5. Any surface or subsurface discharge, including but not limited to storm water runoff, drainage of any roadway that is maintained by the Division of Public Works or any private association; outlets of all drainage swales; outlets of all detention ponds. You should be aware that the current roadway that is used and would be proposed to be used to access the property has a width of between thirty (30) and forty (40) feet. Correspondingly, the shoulders of the roadway are thirty eight (38) to fifty (50) feet. The slopes therein are currently eroding and partially treated, and the degradation of the adjoining or abutting wetlands are affected during heavy rains by the sediment from the soil in the slopes. Based upon such situation, the improvement to the roadway would greatly reduce the erosion and would serve to better direct. and treat any storm water runoff. The addition of a paved roadway, which is further proposed as part of such subdivision, with a closed drainage system directed to a treatment swale, would further reduce TSS counts to DEP acceptable levels. From a further review of all documentation'. I believe it is fairly clear that the Conservation Commission is allowed to permit the construction and maintenance of a new roadway or driveway, of minimum, legal and practicable width, acceptable to the Planning Board dimensional standards "where no alternate means of access from tri *existing public or private way to an upland area of the same ownership is available." As has been previously mentioned herein, the property has been held in the same owner since 1950, and thus was in existence prior to the effective date of October 24, 1994. When reviewing such matters in its entirety, and reviewing the burden of proof requirements, whereby an applicant must prove by a preponderance of the evidence that the work proposed in the application shall not -pave arkunacceptable significant and/or cumulative affect upon the wetland values protected by this Bylaw, I would contend that a variance would not be required. Furthermore, since tyle access road in existence would be acceptable as. a single lot, it should not lose its applicability and availability for subdivision purposes. It is important to note in reviewing the Zoning Bylaws that "the Special Permit Granting Authority (SPGR) under this Bylaw shall be the Planning Board. Such Bylaw was clearly intended to allow the. Planning Board and not -the Zoning Board of Appeals to make a determination with regards to proposed subdivisions, and. I would suggest that Tows-t_.Counsel t, . review that in detail. think it useful to note, from my review of the title, that a subdivision was formerly approved by Board in March, 1957 for the site with the plan recorded at the Essex North District the Planning , ist of Deeds, on April 2, 1957, listed as Plan # 3442. The access points remain the same as t. Reg ry proposed in the current plan, which clearly evidences the intent to use such access points as a ision purposes. While I must clearly acknowledge that means of entering the property for subdiv the Planning Board is not required to accept a new subdivision based upon one that existed a I is importmi ant in making a determination of the use of the site that number of years ago. I think the clear intent and purposes of such subdivision was to use the existing access points. The owner who onginally intended to proceed with the subdivision was Lantern Corporation which, I '4 1 understand, involves the Smith Family who are the current owners of the property, with the previous subdivision formerly known as "Appleton Estates" It is my sole intent and desire to expedite the subdivision process and allow for uses that are clearly spelled out and allowed under the rules and regulations of the Town of North Andover. MPG Realty Corp. is desirous of completing the plans for submittal of its Notice of Intent, and, as well, prepare a definitive set of plans for submittal to the Planning Board, and I would appreciate your having town counsel formulate an opinion, in light of the within submittal. . MAG/lf cc: MPG Realty Corp. Elmer Pease Very truly yours, � ichael A. Gerstein DALE STREET - COMPLIANCE BRIEF & FINDING I have carefully reviewed the Town of North. Andover's Zoning Bylaws -Reprinted 1996 and their Wetlands Protection Bylaw and Wetlands Regulations. 1 researched those sections of the Bylaws that pertain to the Buffer Zone distances and requirements and their interaction with our proposed development. I reviewed several key sections that have, or could have some bearing on the roadway that is proposed for the 7 lot residential subdivision. The following excerpts were taken from the Bylaws and are the ones that are at the heart of this brief. I have also included a copy of the deed to the property furnished by the attorney who completed the title abstract. This deed shows that the property was a lot of record as of March 25, 1960. This date, is of course, critical in the determination of whether or not certain provisions of the Regulations and Bylaws affect this property. After careful review of the Bylaws and Regulations, excerpted below and highlighted, it is my opinion that the roadway we propose in its current location does not require the submittal or finding of the Zoning Board of Appeals. Further, it is my opinion, that the Conservation Commission has the authority and right to grant a waiver to allow the roadway pursuant to Section I.E. Waivers From Regulations -Wetlands Regulations, and the Planning Board to grant a Special Permit pursuant to the finding that the property is a lot created prior to October 24, 1994 and pursuant to Section 4.136.3.c.i and 4.136.c.ii of the Zoning Bylaws -Watershed Protection District, Town of North Andover Zoning Bylaw -Reprinted 1996. Pursuant to Section 4.136.1.d of the Watershed Protection District, the Special Permit Granting Authority (SPGR),6'lall be the Planning Board. The Conservation Commission has the jurisdiction and authority pursuant to Section 178.2 and 178.6 of the Wetlands Bylaw and Section I.E of the Wetlands Regulations. This finding supports the fact that the Planning Board and Conservation Commission have the right and the authority to review and grant approval on this subdivision without having to. acquire a variance from the Zoning Board of Appeals. WETLANDS PI_tOTECTION BYLAW Section 178.1 Purpose... The purpose of this Bylaw is to preserve and protect the wetland resource areas (as specified in Section 2) and buffer zones of the Town of North Andover by regulations of, and control of, activities (more particularly described in Section 2 below) deemed by the Conservation Commission (the "Commission") to have significant or cumulatively detrimental effect upon the following interests and values, including but not limited to: public or private water supply; groundwater; the prevention and control. of flooding, erosion, sedimentation, storm damage, and/or pollution; protection of fisheries, wildlife, wildlife habitat, and recreation., Section 178.9—Rules and Regulations. The Commission shall be empo►vered to adopt Rules and Regulations to govern its affairs, including, but not limited to, fees, definitions, use of consultants, and such other information which it deems necessary to discharge its responsibility. After due notice and public hearing, the Commission may promulgate such rules and regulations to effectuate the purposes of this Bylaw, by a majority of the duly appointed members. WETLANDS REGULATIONS Section I.B Purpose.The purpose of the North Andover Wetlands Protection Bylaw (hereafter referred to as the "Bylaw") is clearly stated in the Bylaw. These Regulations are promulgated to ensure fairness, to create a uniformity of process and to clarify and define the provisions to the Bylaw, administered by the North Andover Conservation Commission, hereafter call the "Commission". Wetlands contribute to a number of public interests and are therefore protected by the Bylaw. The Bylaw identifies three additional public interests not recognized by the Act. These are: "prevention of erosion and sedimentation", "wildlife" and "recreation". Any permit issued under the Bylaw and Regulations must therefore contribute to these public interests. Section I.E Waivers from Regulations. Strict compliance with these Regulations may be waived when, in the judgment of the Commission, such action is consistent with the intent and purpose of the Bylaws and these Regulations. the applicant shall have the burden of proof that the granting of the waiver is consistent with the intent and purpose of the Bylaws and these Regulations. The Commission shall act on the request and shall provide to the applicant, either by certified mail or hand delivery, its written decision. See Appendix 2 for a Waiver Request Form. Section II Definitions. 2. The term "alter" shall include without limitation, the following actions when undertaken in areas subject to the Bylaw: a) changing of pre-existing drainage=eharacteristies, sedimentation patterns, flow patterns or flood retention characteristics; b) placement of fill, excavation or regrading; C) destruction of plant life, including cutting and removing of trees or shrubs; d) changing water temperature, biochemical oxygen demand or other physical or chemical characteristics of water; e) any activities, changes or work which pollute or cause displacement of any body of water or groundwater; f) any activities, changes or work which cause alteration of wildlife habitat. 3.The term "burden of proof" means the applicant shall have the burden of proving by a preponderance of credible evidence that the work proposed in the application shall not have an unacceptable significant andlor cumulative effect upon lite wetland valves protected by this Bylaw. Failure to provide adequate evidence that the work proposed in the application shall not have an unacceptable significant and/or cumulative effect upon the wetland values protected by this Bylaw shall be sufficient cause for the Commission to deny a permit or grant a permit with conditions. Section VI Performance Standards and Supplement Documentation A. Flood Standards. B. Wildlife Habitat C. Stormwater Management D. Erosion Control E. Wetland Replacement or Restoration E.3. The Commission may permit the construction and maintenance of a new roadway or driveway of minimum legal and practical width acceptable to Planning Board Dimensional standards, where no alternative means of access from an existing public or private way to an upland area of the same owner is available. Replication of altered wetlands resources may be required by the Commission to minimize adverse impacts and to protect the interests identified in the Bylaw. WATERSHED PROTECTION DISTRICT Section 4.136 2.f The provisions relating to the establishment of the Conservation Zone and the enlargement of the Non -Disturbance Zones shall only apply to lots of recorded or registered after the date of the enactment of this amendment (October 24, 1994). (1994/1 STM). Table 1 - Lots created after October 24, 1994 Conservation Non - Disturbance From Annual High Water Mark of Lake Cochichewick out to From Edge of All Wetland Resource Areas Within the Watershed District out to 150' 250' 75' 150' Non - Discharge 400' 400' Table 2 -Lots created on or prior to October 24, 1994 Non- Non - Disturbance Discharge From Annual High Water Mark of Lake Cochichewick out to 250' 325' From Edge of All Wetland Resource Areas Within the Watershed District out to 100' 325' C. Non -Disturbance Buffer Zone There shall exist a Non -Disturbance Buffer Zone within the Watershed Protection District which shall consist of all land areas located between one hundred fifty ............. i. Allowed Uses: All of the Allowed Uses listed in Section 5(a)i of this Watershed Protection District Bylaw are allowed in the Non -Disturbance Zone except as noted below. ii. Uses Allowed by Special Permit: The following uses shall be allowed within the Non -Disturbance Buffer Zone only by Special Permit issued pursuant to Section 4 of this Watershed Protection District Bylaw. (1) Any activities which cause a change In topography or grade. (2) Vegetation removal or cutting, other than in connection with agriculture uses or maintenance of a landscape area. (5) Any surface or sub -surface discharge, including but not limited to, stormwater runoff; drainage of any roadway that is maintained by the Division of Public Works or any private association; outlets of all drainage swales; outlets of all detention ponds. The current roadway that is used to access the property has a width of between 30- 40 feet. The shoulders of the roadway are 38-50+ feet. The slopes are currently eroding and partially treated. The degradation of the adjoining or abutting wetlands are affected during heavy rains by the sediment from the soil on the slopes. The improvement to the roadway would greatly reduce the erosion, and better channel and treat stormwater runoff. The addition of a paved roadway, with a closed drainage system directed to a treatment swale would reduce TSS counts to DEP acceptable levels. i- .. dr- � _ v,~ ..•:"'�.•.. r.i —tom � __ ::. r i I t • 1; Lot I Dale Street- Repetitive Petition The Planning Board herein consents to allow the petitioner as set forth below to re -petition the Zoning Board of Appeals. The petitioner is MPG Realty Corporation, 1 1 Old Boston Road, Tewksbury, MA 01376. The petition was submitted on;March 12, 1999. The Planning Board makes the following findings as required by MGL ch. 40/k Sec. 16 and North Andover ZoningBy-Law Section 10.8: FINDINGS OF FACT: 1. On March 18, 1993, MPG Realty Corporation tiled a petition with the North Andover Board of Appeals for a variance from the requirements of Section 4. 136.2(b) and (f) and 4.136.3(d) to construct a roadway with all required detail within the 75' conservation zone. 2. On April 15, 1993 the North Andover Board of Appeals voted to deny the petition because the applicant had not met the requirements necessary for a Variance such as unique conditions oFsoils, slopes, and hardship. On April 21, 1993 the North Andover Plannino Board voted to approve the Be:-ington Estates subdivision located at Lot I Dale Street. '. On iViarch 16, loop the North Andover Planning Board endorsed the approved subdivision plans. The applicant submchain,-,esed specific and material chain, -,es to their application it dicatin , where their proposal ices rhe requirements of the denial by the Zonin+2 Board_ soils slopes and hardship. Through their ne.v application variance. submittal they have provided information that addresses a more complete response to [he criteria set firth For a Decision: The Plannim Board has determined that specific and material change:; have occurred in the conditions upon which the unfavorable decision was based, such as the following. The submittal OF additional and more specific information indicates that the circumstances are related to the reasons for the denial by the Zonin` Board which is the lack utevidence that there are conditions ut soils that are unique to the lot and create hardship. The subdivision plan has been approved and endorsed by the North Andover Plarnr,ins Board setting forth the roadway for which the variance is requested. The subdivision plan includes changes that will lessen the impacts on the waterShed and therefore reduce impacts. These changes relating tom protection of the watershed are indicated in a leaer from PD Associates, LLC Auburn N.H. dated March 4, 1998, as follows; a•Catch basin 3A is moved outside the drivel.vay. b. Removal ofsidewalks. C. Moved leaching pits outside the 150 -Foot zone.;11\j „ d. Lawns will be outside the 100 -toot zone. u� S,G1� yr , ,a- t t+� :�` e. Dentition basin will be outside the 75- S? G foot zone. r'.L A Permanent boundari is added to delineate the 75 -foot buffer zone. °. v/i The stonewall at the entrance is reset. r 1 The Board votes to hereby recommend for allowing the applicant to reapply to the Zoning Board for the Varian ">[ I Dale S[r het — i�c pet!U':e ('r';; lion �^.f13 '�� iij 1 ,UN 7 i!M 4-1 F ,_Z� :? / tpb RECD V yE JUN 1999 AND C)"VER CIONS E RVATICjq 1 SS O'N Town of North Andover %V t NaRTH OFFICE OF° o� COMMUNITY DEVELOPMENT AND SERVICES � a \ i 30 School Street--. y North Andover, ivlassachusetts 018-: = } ?r^1 LIANf 1. SCO TT ^crus= Director ,. NOTICE OF DECISION rte; o U Any appeal shall be filled within (20) days after the -_ date of fillina this Notice in the Office of the Town Clerk. Date April 21, 1999 Date of Hearing MArch 16, 1999 & Aoril 6, 1999 Petition of MPG Realty Corp. April 20, 1999 Premises affected Lot 1 Dale Street Referring to the above petition for a special permit from the requirements of the North Andover oni nct Bylaw Sectioo 10 g so as to allow to determine whether there are specific and material changes in the application for a Variance to allow a repetitive petition within 'a two year prohibition After a public hearing given on the above date, the Planning Eeard voted to APPROVE the SPECIAL PERMIT REPETITIVE PETITION based upon the following conditions: Signed�_L�''�c CC: Director of Public Works Richard S.Rowen, Chairman Euilding Inspector Natural Resource/Land Use Planner Alison Lescarbeau, V. Chairman Health Sanitarian Assessors John Simcns. Clerk Police Chief Fire Chief Richard Naree11a Applicant Engineer Josech V. Mahoney Towns Outside Consultant File Plannina Ecard Interested Parties CONSER`i,aTION - (973) 63:1 930 • IIL_ALT1I - (973) (M3-9?4U P :1�+i+[:`rG - (973) 6Xi-993' lit; 1[.11I��G (9EiICE - O":�) 6Ra-'�cJ< iii iNv ' IiU.1Rll Lot 1 Dale Street— Repetitive Petition l The Planning Board herein consents to allow the petitioner as set forth below to re -petition the Zoning Board of Appeals. The petitioner is MPG Realty Corporation, 1 l Old Boston Road. Tewksbury, NLS 01876. The petition was submitted on March 12, 1999. The Planning Board makes the following findings as required by MGL ch. 40A Sec. 16 and North Andover Zoning By -Law Section 10.8: FINDINGS OF FACT: 1. On March 18. 1998, NIPG Realty Corporation filed a petition with the North Andover Board of Appeals for a variance from the requirements of Section 4. 136.2(b) and (f) and 4.136.3(d) to construct a roadway with all required details within the 75' conservation zone. 2. On April 15, 1998 the North Andover Board of Appeals voted to deny the petition because the applicant had not met the requirements necessary for a Variance such as unique conditions of soils. slopes, and hardship. 3. On April 21, 1995 the North Andover Planning Board voted to approve the Berrington Estates subdivision located at Lot 1 Dale Street. 4. On Nlarch 16, 1999, the North Andover Planning Board endorsed the approved subdivision plans. The applicant submitted specific and material changes to their application indicating where their proposal meets the requirements ofthe denial by the Zoning Board- soils slopes and hardship. Through their new application submittal they have provided information that addresses a more complete response to the criteria set forth for a variance. Decision: The Planning Board has determined that specific and material changes have occurred in the conditions upon which the unfavorable decision was based, such as the following: The submittal of additional and more specific information indicates that the circumstances are related to the reasons for the denial by the Zoning Board which is the lack of evidence that there are conditions of soils that are unique to the lot and create hardship. The subdivision plan has been approved and endorsed by the North Andover Planning Board setting forth the roadway for which the variance is requested. The subdivision plan includes changes that will lessen the impacts on the watershed and therefore reduce impacts. These changes relating tom protection of the watershed are indicated in a letter from PD Associates, LLC Auburn N.H. dated March 4, 1995, as follows; a. Catch basin 3A is moved outside the driveway. b. Removal of sidewalks. C. Nloved leaching pits outside the 150 -foot zone. d. Lawns will be outside the 100 -foot zone. e. Dentition basin will be outside the 75 -foot zone. f. A permanent boundary is added'to delineate the 75 -foot buffer zone. g. The stonewall at the entrance is reset. The Board votes to herebv recommend for allowing the applicant to reapply to the Zoning Board for the Variance. Lot I Dale Street— Repetitive Petition TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS Joel Bard Kopelman & Paige 31 St. James Avenue 7`h Floor Boston, MA 02116-4102 Dear Attorney Bard: May 29, 1998 This is in regards to our conversation on May 28, 1998, on the application from MPG Realty Corp. The Chairman, William J. Sullivan, has asked for your written opinion. The applicant was denied variances from the previous application and has appealed the decision of the Zoning Board of Appeals. The applicant has since gone before the Planning Board with a Repetitive Petition. The decision on the Repetitive Petition has not been made or filed with the Town Clerk. Please provide the Zoning Board of Appeals with a written decision on the ability of the applicant to come before the Board with the appeal pending on the previous application. Our next meeting has been scheduled for June 9, 1998. For your convenience, enclosed are copies of both applications. Your attention in this matter is greatly appreciated. /je enc. Very truly, A� -11171--I Walter F. Soule, Vice Chairman Zoning Board of Appeals TOWN OF NORTH ANDOVER OFFICE OF TOWN CLERK 120 MAIN STREET NORTH ANDOVER, MASSACHUSETTS 01845 Joyce A. Bradshaw 3? c� Town Clerk ° , ;, Telephone (978) 688-9501 W * FAX (978) 688-9556 DATE: ADDRESSEE: NAME:' -ems G� FIRM: qi� 100ezI C STREET: CITY: FAX NUM: A iaD - /-05-/—�� FROM: NAME: JOYCE A. BRADSHAW DEPT.: TOWN CLERK 120 MAIN STREET NORTH ANDOVER, MA 01845 TELEPHONE: (508) 688-9501 FAX NUMBER: (508) 688-9556 TOTAL NUMBER OF PAGES, INCLUDING COVER LETTER: ADDITIONAL COMMENTS: "�A ZED uhf s✓� Post -It'°" brand fax transmittal memo 7671 #of pages ► To oe"I From Co. Co. Dept. Phone # Fax# � �- /� Fax# PRINCIPAL POINTS �qsl SSS Property has been endorsed as an eight (8) Lot Subdivision, with 2 -cul-de-sac roadways. Seven (7) of the lots are buildable and one (.1) is for conservation only. 2. Property has two existing means of access. The Westerly most access is currently used as a roadway for ingress and egress to the property. Both the east and west accesses have existing culverts that allow drainage under the current conditions. Culverts will remain after roadway improvements. (Exhibit "1") 3. Both access points are in close proximity to bordering vegetated wetlands (BVW). Both access points are within the 75' foot conservation buffer of the Watershed Protection Bylaw, as determined by the Planning Board. (Exhibit "2") 4. There is no reasonable alternative access point. Homes and other BVW areas surround the site. (See Exhibit "3" for Alternative Access Report) 5. Current property owners abutting the subject parcel have driveways or contiguous boundaries for alternative access that fall within the 75' foot conservation buffer. 6. Due to the soils conditions as shown in Exhibit "1", other access to the property is unavailable. 7. The unusual shape of this parcel, fronting on Dale Street in two locations of 50 +/- and 186+/- feet does not have direct access as do many home that are already built. Direct access in the neighborhood as they currently exist affects the subject parcel not generally affected by these abutting properties. 8. A literal enforcement of the Bylaw would unjustly create a legal, equitable and financial hardship as no reasonable use could be granted without benefit of access through the current westerly access point. 9. There is no filling of wetlands proposed or approved for this access. The Conservation Commission determined that there would be no adverse impact as a result of this project. The Conservation Commission, their engineer and the Administrator thoroughly reviewed and approved this project. The Order of Conditions are attached as Exhibit "4". 10. The Planning Board/Special Permit Granting Authority (SPGA) approved the Definitive Subdivision Plan and the required Special Permits for this project. The Board, their engineer, Department of Public Works and Planner thoroughly reviewed this project and determined there would be no adverse impact. The Conditions of Approval and the Special Permit are attached as Exhibit "5". 11. Granting relief would allow access not otherwise available. This would not cause substantial detriment to the public good and nullify or substantially derogate from the spirit and intent of the Bylaw. Additional information from Attorney Joel Bard, Attorney Michael Gerstein and Elmer A. Pease, II is attached as Exhibit "6'. 71") rte, le, 4 Herbert P. Phillips, P.C. r. ; Michael A. Gerstein L �." ' ` ` LAW OFFICES OF JOYCE cEf Q,'.: � Stuart M. Holber TOWN /7 a /� Q Mwwn Russell S. Channen M RTN • S / �pr(��p//,] / el er (U Jane M. Owens Triano a N n f {+IVI)[a u Iif� III J ate► Ronald N. Beauregard Kevin P Rauseo MAY 7t , 25 Kenoza Avenue ■ Haverhill, MA 01830 23 if�i` () 374-1131 / (800) 457-6912 ■ Fax: (978) 372-3086 Of Counsel: John T. Pollano Gerald M. Lewis May 7, 1998 Town of North Andover Town Clerk's Office 146 Main Street North Andover, MA 01845 Re: MPG Realty Corp. v. Walter F. Soule, et al, as members of the Zoning Board of Appeals for the Town of North Andover Dear Sir/Ms: Kindly find enclosed herewith Comolaint. filed with the Land Court on May 7, 1998, appealing the denial of a variance in the above matter. Such notice is given to you as required by M.G.L. Chapter 40A, Section 17. Very truly yours, Michael A Gerstein MAG/If cc: MPG Realty Corp. All attorneys admitted in Massachusetts. Holber, Beauregard and Rauseo admitted also in New Hampshire. Holber admitted also in Maine. Other office: 32 Saco Avenue, P.O. Box W, Old Orchard, ME 04064 Reply to Haverhill office only COMMONWEALTH OF MASSACHUSETTS TRIAL COURT OF THE COMMONWEALTH SUFFOLK, ss LAND COURT DEPT. DOCKET NO.: �l 93� q r MPG REALTY CORP. V. WALTER F. SOULE, RAYMOND VIVENZIO, SCOTT KARPINSKI, WILLIAM SULLIVAN, ROBERT FORD, JOHN PALLONE, ELLEN McINTYRE, AND GEORGE EARLEY, as members of the Zoning Board of Appeals for the Town of North Andover Massachusetts COMPLAINT FOR JUDICIAL REVIEW OF DENIAL OF VARIANCE; PETITION FOR JUDICIAL DETERMINATION OF VALIDITY OF ZONING ORDINANCE; AND COMPLAINT FOR DECLARATORY JUDGMENT JURISDICTION Jurisdiction is conferred upon this Court to annul the decision of the Zoning Board of Appeals for the Town of North Andover (hereinafter sometime referred to as "Board"), pursuant to M.G.L. Chapter 40A, Section 17. Jurisdiction is further conferred upon this Court to issue a Declaratory Judgment, pursuant to M.G.L. Chapter 231A, and for Judicial Determination of Validity of a Zoning Ordinance, pursuant to M.G.L. Chapter 240, Section 14A. PARTIES 1. Plaintiff, MPG Realty Corp., (hereinafter referred to as "MPG"), is a corporation duly organized by law, having a principal place of business at 11 Old Boston Road, Tewksbury, Middlesex County, Massachusetts. At all relevant times hereto, MPG has sought to develop the land more particularly described as Lot 1, on Map 37B on Dale Street, in the Town of North Andover, Essex County, Massachusetts (hereinafter referred to as "the Lot"). The Lot is owned by Gwendolyn C. Smith, (hereinafter referred to as "Smith") pursuant to a Deed conveyed to her and her late husband, R. Ashton Smith, from Lantern Corporation dated March 25, 1960 and recorded at the Essex North District Registry of Deeds at Book 912, Page 187, a copy of said Deed being annexed hereto as "Exhibit A". 2. Defendant, Walter F. Soule is a member of the Zoning Board of Appeals and resides at 70 Raleigh Tavern in North Andover, Essex County, Massachusetts. 3. Defendant, Raymond Vivenzio is a member of the Zoning Board of Appeals and resides at 11 Appledore Lane, North Andover, Essex County, Massachusetts. 4. Defendant, Scott Karpinski is a member of the Zoning Board of Appeals and resides at 691 Forest Street, North Andover, Essex County, Massachusetts. 5. Defendant, William Sullivan is a member of the Zoning Board of Appeals and resides at 405 Salem Street, North Andover, Essex County, Massachusetts. 6. Defendant, Robert Ford is a member of the Zoning Board of Appeals and resides at 89 Bear Hill Road, North Andover, Essex County, Massachusetts. 7. Defendant, John Pallone is a member of the Zoning Board of Appeals and resides at 67 Vest Way, North Andover, Essex County, Massachusetts. 8. Defendant, Ellen McIntyre is a member of the Zoning Board of Appeals and resides at 23 Tanglewood Lane, North Andover, Essex County, Massachusetts. 9. Defendant, George M. Earley is a member of the Zoning Board of Appeals and resides at 125 Lyman Road, North Andover, Essex County, Massachusetts. ACTS AND EVENTS UPON WHICH THIS ACTION IS FOUNDED COUNT (Judicial review of denial of Variance, pursuant to M.G.L. Chapter 40A, Section 17.) 10. On February 12, 1998, MPG submitted an application for a request to determine the applicability of Section 4.136.3 (d) (ii) as it pertains to a lot of record prior to October 24, 1994, and, if applicable, a variance from this Section to construct a roadway with required details, within the seventy-five (75) foot Conservation Zone, a copy of such initial application with supporting documentation being annexed hereto as "Exhibit B". 11. Smith authorized MPG to file such petition pursuant to the owner's affidavit annexed hereto as "Exhibit C". 12. MPG had previously appeared before the Planning Board for the Town of North Andover (hereinafter referred to as "Planning Board") seeking approval of an eight (8) lot residential subdivision for the Lot. MPG, through its representatives, raised the issue of access to the Lot pursuant to Section 4.136.3 (d) (ii) and its exemption pursuant to Section4.136.2 (f) and Table 2. MPG asserted that a way, roadway and/or public way were not applicable. The Planning Board raised the issue of considering the roadway upon recording to be a Lot under 4.136.2 (f) and Table 1. 13. The configuration of the Lot is shown on the map annexed hereto as "Exhibit D". MPG questioned whether the Zoning Board of Appeals had jurisdiction to render an opinion on a variance request, pursuant to Section 4.136.2(f) of the ByLaws for the Town of North Andover (hereinafter referred to as "By Laws"), since said provision applies to lots (emphasis added) recorded or registered after the date of the enactment of such Amendment, that being October 24, 1994, a copy of said provision being annexed hereto as "Exhibit E". 14. On July 23, 1997, MPG, through its counsel, submitted a letter to William J. Scott, Director of Community Development and Services questioning the applicability of such provision, a copy of said letter being annexed hereto as "Exhibit F". 15. On February 25, 1998, MPG and its real estate consultant met with the Acting Chairman and a member of the Board. After considerable discussion regarding the content and the request sought, MPG voluntarily agreed to withdraw its application from consideration before the Zoning Board of Appeals meeting, scheduled for Marc 10, 1998. MPG agreed to refile its application with more specific language as recommended by the Board's members at such February 25, 1998 meeting. 16. On March 10, 1998, the Board, at its regularly scheduled meeting, approved the withdrawal of MPG's application without prejudice, pursuant to a letter from MPG's consultant, a copy of said letter being annexed hereto as "Exhibit G". 17. On March 17, 1998, MPG appeared before the Planning Board seeking approval of its subdivision and was informed by said Planning Board, that any subsequent approval of such subdivision would require either a grant of a variance by the Zoning Board of Appeals or a determination of the inapplicability of such provision for variance purposes. The Planning Board closed the public hearing and considered all planning issues satisfied and required MPG to acquire the variance to complete what it determined to be the one outstanding Zoning issue remaining., 18. On March 18, 1998, MPG, as applicant, with the concurrence, approval and at the direction of Smith, applied for a variance from the requirements of Section 4, Paragraphs 136.2 (b)(iv), 136.2 (f) and 136.3 (d) and Table 1 and 2 of the Zoning ByLaws of the Town of North Andover, if applicable (emphasis added), a copy of such application being annexed hereto as "Exhibit H". 19. The relief sought on such application was to build a roadway with all required details, within a seventy five (75) foot Conservation Zone, if applicable. The principal points upon which MPG filed this application were based upon the Lot having two existing accesses with culverts, one of which was currently openly being used. Furthermore, there were no other reasonable means of access available, and the determination of applicability and/or the granting of such relief would allow access to the Lot not otherwise available. 20. MPG contended throughout the meeting that relief was not necessary, pursuant to Section 4.136.2 (f), Table 2, and requested on a number of occasions for the Board to determine that•Thearoadway did not fall within the purview of Section 4.136.2 (f) Table 1 and that a variance was not necessary. MPG further requested, through its attorney and real estate consultant, that if the Board felt that if such provisions of the ByLaws were applicable, that a variance should be granted and testimony, to that effect, was presented in full, complete and total detail to the Board. 21. MPG repeatedly requested, throughout the hearing, for a determination by the Board whether or not Section 4.136.2 (f) Table 1 was applicable. Despite such request, the Board did rule on the request and did not consider the substantial evidence submitted under the guidelines requested by the Acting Chairman from the submittal of the February 12, 1998 and March 18, 1998 applications. All such evidence was to be reviewed and considered prior to the April 14, 1998 hearing. 22. Prior to the regular meeting of the Board set for April 14, 1998, MPG, through its counsel, submitted a Memorandum in support of its application, a copy of such Memorandum being annexed hereto as "Exhibit F'. 23. On April 14, 1998, a meeting was held by the Board at which time Defendants, Soule, Vivenzio, Karpinski, McIntyre and Earley were present. 24. The Board denied MPG's request for a variance but made no determination as the applicability of Section 4.136.2 (f) as requested in such application, and on a number of occasion during the meeting. 25. On April 21, 1998, the Board filed its decision with the Office of the Town Clerk, a certified copy of such decision being annexed hereto as "Exhibit J", as required by M.G.L. Chapter 40A, Section 17. 26. The Board exceeded its authority' failed to render a decision properly and acted arbitrarily in denying MPG's request for a variance and, in further refusing to act on the question of applicability of such Town By Law. 27. MPG's requested variance was in conformity with the requirements for a variance, as provided for in M.G.L. Chapter 40A, Section 10 and the Town of North Andover Zoning ByLaws, Section 10.4 in that substantial hardship existed, that such relief would not substantially derogate the intent or purpose of such ByLaw and further, that such hardship was not created by MPG or Smith. The decision of the Board to deny MPG's application for a variance, and not determining the applicability of Section 4.136.2 (f) is inconsistent with the objectives of the Zoning ByLaws of the Town of North Andover and exceeds the authority of the Zoning Board of Appeals wherein it disregarded the weight of the evidence proving hardship and the construction of such Zoning By Laws. The decision of the Board to ignore MPG's request for the applicability of 4.136.2 (f), Tables 1 & 2, and if deem applicable, a variance is inconsistent with the duties of the Board and the objectives of the Zoning ByLaws of the Town of North Andover. 28. Further, this action exceeded the authority of the Board wherein it wantonly disregarded the weight of the evidence proving hardship and the construction of such Zoning ByLaw. Such decision further prevents full and complete use of the Lot. COUNTII (Declaratory Relief pursuant to M.G.L. Chapter 231A) 29. Plaintiff restates and reavers the allegations contained in Paragraphs 1 through 28 as if fully set forth herein. 30. A dispute now exists between MPG and Defendants as to the interpretation of the Watershed Protection District of the Zoning ByLaws of the Town of North Andover and its applicability to the Smith property located on Dale Street, North Andover, known as Map 37B, Lot 1 on said Town maps, on which the Lot MPG seeks to develop an eight (8) lot residential subdivision. 31. The Lot is in Zoning District R-1 and the premises affected have an area of 1,305,493 square feet, as shown on the map referenced hereinabove and listed as Exhibit D. 32. Until such time as the actual controversy as. to the applicability of Section 4.136.2 (f) to Plaintiff's use of the existing driveway for access purposes is determined, MPG will not be able to access or subdivide the Lot and proceed with a residential subdivision as intended. 33. On April 21, 1998, the Planning Board approved an eight (8) lot residential subdivision, subject to the acquisition of a variance from the Zoning Board of Appeals. Said decision is date stamped April 22, 1998 and is annexed hereto an Exhibit "K". 34. On April 23, 1998, the Planning Board approved a Special Permit from the requirements of the North Andover Zoning ByLaws, Section 4.136 (b), (c), and (d) in the Watershed Protection District so as to allow MPG to build a roadway, waterline and detention basins within the Non -Discharge, Non -Disturbance and Conservation Buffer Zones. Said decision is date stamped April 23, 1998 and is annexed hereto as "Exhibit L". 35. Pursuant to the provisions of the Zoning ByLaws and, in particular, Section 4.136, dealing with the Watershed Protection District, it is stated under 4.136.2 (f) "the provisions relating to the establishment of the Conservation Zone and the enlargement of the Non -Disturbance Zone shall only apply to lots recorded or registered after the date of the enactment of this Amendment" (October 24, 1994). 36. The Lot was purchased by Smith on March 25, 1960 thereby exempting the Lot from the above mentioned provision. The proposed subdivision and its current access points are in the Non -Disturbance Buffer Zone with the following uses to be allowed by Special Permit within such zone, only by Special Permit, pursuant to Section 4.136.2 (c) (ii) of the Watershed Protection District ByLaw; I . Any activities which cause a change in topography or grade; 2. Vegetation, removal or cutting other than agricultural uses or maintenance of a landscape area; 5. Any surface or subsurface discharge, including but not limited to stormwater runoff; drainage of any roadway that is maintained by the Division of Public Works or any private association; outlets of all drainage swales; outlets of all detention ponds. 37. The Special Permit Granting Authority, pursuant to the ByLaws for the Town of North Andover is the Planning Board, thus making such Planning Board, based upon the existing ByLaw, the proper Board to make the determination as to the access to the Lot. 38. The specific matter in dispute is as follows: The applicability of Section 4.136.2 (f) and whether or not the Zoning Board of Appeals should have acted upon the applicability prior to any consideration of a variance or request. 39. This action is brought under Chapter 231 A of the Massachusetts General Laws and MPG Realty Corp. is seeking a Declaratory Judgment as to the applicability of provisions of the Zoning By Laws.of the Town of North Andover and whether the Zoning Board of Appeals has jurisdiction to render a decision on the variance. COUNT III JUDICIAL REVIEW FOR DETERMINATION OF VALIDITY OF ZONING ORDINANCE PURSUANT TO M.G.L. CHAPTER 240, SECTION 14A 40. Plaintiff restates and reavers the allegations contained in Paragraphs 1 through 39 as if fully set forth herein. 41. Defendants, Walter Soule, Raymond Vivenzio, Scott Karpinski, Ellen McIntyre and George Earley, are duly authorized and acting members of the Zoning Board of Appeals of the Town of North Andover, charged in their official capacities with the duty of administering and enforcing the provisions of the Zoning ByLaws of the Town of North Andover and, in particular, Section 4.136.2 (f), which By Law was in full force and effect at all times material hereto. - 42. Section 4.136.2 (f) states in part, "the provisions relating to the establishment of the Conservation Zone and the enlargement of the Non -Disturbance Zone shall only apply to lots recorded or registered after the date of the enactment of this Amendment" (October 24, 1994). 43. Section 4.136.2 (f) is inapplicable as applied to the Smith lot in that the Lot was purchased by Smith on March 25, 1960. Defendant Members of the Board of Appeals failed to vote upon the applicability of such provision to the proposed subdivision by MPG and further refused to consider all evidence and factors in support of MPG's position thereupon. 44. Unless granted the relief sought herein to determine such provision inapplicable, MPG will suffer irreparable injury by the enforcement of said section since said Defendants failed to grant the required relief to allow MPG to use the existing driveways with culverts as access to the Lot. For the reasons set forth above, a real controversy exists between Plaintiff and Defendants regarding their respective rights and duties under the provisions of the By Laws, as applied to the Lot. WHEREFORE, MPG requests: a. The Board of Appeals decision denying Plaintiff, MPG Realty Corp.'s application for a variance be annulled; b. For Declaratory Judgment declaring that the provisions of Section 4.136.2 (f) Table 1 are inapplicable'to the lot described as Map 37B, Lot I and that Table 2 is applicable and therefore the Lot falls within the Non -Disturbance Zone and is deemed inclusive under the Planning Board's Special Permit. C. That this Court issue a judgment declaring Section 4.136.2 (f) inapplicable to the above described Lot; that the Board of Appeals be permanently enjoined from enforcing or attempting to enforce Section 4.136.2 (f) against MPG and its request to subdivide said lot; d. Plaintiff be entitled to damages and costs incurred in this action; and e. Such other further relief as this Court deems reasonable and just. MPG Realty Corp., By its attorney, Michael A. Gerstein, Esq. Phillips, Gerstein, Holber &Channen 25 Kenoza Avenue Haverhill, MA 01830 (978) 374-1131 BBO# 190040 t LAj rER., CURPURAYl UN Conunonwealth of D'.assachusetts a curl) ration duly established under the laws of and having its usual place of business at Lexington �. County, Massachusetts, for consideration paid Middlesex husband and wife as grant to R. Ashton Smith and t;wendole'n C. Smith, Tenants by the Entirety °f North Andover, . h.ssex County, Massachusetts with gatlrlatm raarnantil thA34Mn ,wa certain parcels of land situated off Dale Street in t•'. " as follows said North Andover, bounded and described �r^ �DesripYoo rod recumbrreep. it ..,1 f YA1t:EL N0. L beginning at the Northwesterly corner of land now or formerly llillner, being shown as Lot No. 17 A on"Plan of Appleton 'states, ;ale Street, North :.ndover, Mass. owner, Lantern' Corp., Engineer, Ralph B. Brasseur, March 27, 1957" said plan being recorded in.the North District of �ssex.ltegistry of Deeds as Plan No. 3442; thence running Northerly by a stone wall and land of Cadogan seven hundred forss to and 04/LGO feet mo or Lerunnin an iron pipe at land of Leland as shown on said p thence, g �i Easterly by a stone wall forming the Northerly boundary of Lot No. 2U on said plan and by a ditch forming the Northerly lboundary oun areaid Leland No. 21 and 22 on said plan; of Lots thence Andover,nl, by Daniel `.' as shown on "Plan of Land in North Andover, Mass. owned by E. Hogan Jr., Feb=nary 29, 1956" recorded in the :'forth District of ;` lissex Registry of Deede as rlan No. 3206 a total distance of 2,025 feet more or less -to the car ner of plan; thence wall aturningt land oand running Miller as shown on said last named p a stone wall, three Southerly and by said Land of ,tiller in part by hundred ninety as shown on said last -one and 46/lUu feet to other Land of Robert Ptiller named plan; thence rutining Westerly by the as shown boundary of land of Robert killer, Philip Miller, White and win ;field as shotm on said last named plan, Ave hundred eighty and 91/LOU feet to a stone wall ac Land of Sanborn on said plan; land of thence turninO and runnin;; Northerly byluliiefeetnta, the Noall rth asterly Sanborn, one hundred twenty-nine and SU/ t.tence turning i corner of said Sanborn land, as shown un said plan; and running Westerly by t(te Northerly boundary of land of Sanborn and Peters as shown on said plan, two hundred eighty three feet to an iron pipe at the Northwesterly corner of Land of said reters;_tnence turning and running Southerly by the '.festcrly line of said reters land -as shown on plan recorded No. 3442 referred to above, a distance of silown on four hundred thirty-nine and 5./100 feet to .)ale Street aastonewall said last named plan; thence running about .4esterly by t as shown on said last named plan in several courses and Dale stree [+ measuring forty-seven and 74/LUU feet, fifty toea�stone thirty six and Su/LOU feet and fifty g general bound as shown on said elan; thence turning and running in a Northerly direction by the curve of a proposed road as s.. ahd three on said plan in two courses, measuring twenty-six and 4.)/lU0 feet an 06/ILK.)feet to a stone bound at tt�e llanhethenceY hundred thirty and 06/lU corner of land of And as shown on said last aboundmof land of turnin_ and runnin; :lesterly by the C:ortherly ' Andresen, Kirkham and Foss three hundred and forty-one feet to land: Cy of said grantee marked n.A. Smith on said plan; Lhence turning and r�,t\ortherly by land of said grante unnine ninety-five feet tnthence, I or less'to the Northeasterly corner at lanofsSmith•as•shown honasaid plan turning. and running ;Jesterly by b Lwo 'hundred eibttty-eight and 44/1,U feet to a point; thence turning . a curve having a radius and runnin; in a Southwesterly didistance o ht two of three hundred seventy feet, a distance of two hundred gig y- and 92/LUU feet to a drill hole in a stone wall at Dale itreet as Y shown on said plan; thence turning and running Northwesterly by a stone wall and,oale Street eighty-five feet more or less to a atone shown On said bound in the Southeasterly corner of Lot No. 17 A sa ttteoutheasterly plan; thence in a general Northeasterly direction by y thirt one and 42/100 boundary of Lot 17 A in three courses meeauring Y - feet, ninety-four and �3/Lc,U feet coTdeTneolhsaddeLoChl7Ayaswshown on i5/100 feet to the Northeasterly 'rs In mitluos w4rrruf, the said 1-e.NTP.RN CORPORATTUN has caused its corporate seal to be hereto affixed and these presents to be signed, acknowledged and delivered in its name and behalf by ' George H. Matheson, Jr. Treasurer its President andhereto duly authorized, this twenty-fifth day of March in the year one thousand nine hundred and sixty Lj I ri Signed and sealed in presence of LANTERNCORPURA'1'IUN :•',�• . .. ` sident and 'Treasur u14e (IIommonmemltq of Mmoaarhngella Essex ss• March 25, 1960 Then personally appeared the above named George H. Matheson, President Treasu and. acknowledged the foregoing instrument to be the free act and deed of tfie LANTERI, CORPURATiON before me / ,Charles i;. Hatch Nbli—' October 22, 1p6u Yr aommiWm npv Essex,ss. Recorded nar. 251 1960 at 35m past 12P.M. •`,-`598 said plan; thence turning and running Northwesterlyby Lt 17 A on g• hundred six and 49/100 feet to the pointobeginning. said plan three Containing 30 acres more or less. 9 1 ? :'AnCEL II Being shown as Lot No. 16 on the Southerly side of Dale "Plan of Land in North tsaid in tiortll Andover on Plan entitled breT e: by i)anielL. Mogan Jr. February 9, 1956. Said �.8 8'' Andover, Mass. owned plan being recorded in said rel*istry as Plan No. 3236, said premises follows: +. being more p articularly bounded 'Ind described as fifty feet more or less by Dale Street; , NV','1'tlEASTLY two hundred S3UTIlGP1STcRL'f one hundred sixty eight feet more or less by Lot M� t:u. 15 on said plan and now SOtJ'T►ITdES'PLRLtomhundred twenty two twofrerly oand NewEnglandCompany assshownl or Power said plan. Containing 21,5Ju square feet more or less according to said plan. Being part of the premises conveyed to the Grantor Corporation E. i'ogan Jr. et ux dated April 16, 1956, recorded by deed of Daniel ' in said Registry, dook 331 Page 306. l Said premises are conveyed subject to a•taking by the Essex of Dale Street, recorded in County Commiedionere for the relocation said Registry, dock 098, :age 435, in so far as the same affects the Iwithin described premises. • Meaning and intending, and hereby conveying to the grantees of of record the name of t;7 i all the land in North Andover now standing ed Lantern Corporation whether or not the same is included within the boundaries of tlue above described parcels. Said premises are conveyed subject to the taxes fur the current year which the grantees herein assume and agree to pay. The grantor corporation herewith conveys to the said grantees any of the Taking and all rights to damages which it may have as a result referred to above. {;? hnachr .c;ts Decd Excise Stamps !+ { U. S. Cedernl Revenue Stamps— d }: in sum of S _11.10___-'-- nf`;l ; ;t c;u:,:cii�.: ou this ' ofa':ed ::sit C1.11ceNed Un tins In::trll like 11 t. instrummnt. ,,.2 In mitluos w4rrruf, the said 1-e.NTP.RN CORPORATTUN has caused its corporate seal to be hereto affixed and these presents to be signed, acknowledged and delivered in its name and behalf by ' George H. Matheson, Jr. Treasurer its President andhereto duly authorized, this twenty-fifth day of March in the year one thousand nine hundred and sixty Lj I ri Signed and sealed in presence of LANTERNCORPURA'1'IUN :•',�• . .. ` sident and 'Treasur u14e (IIommonmemltq of Mmoaarhngella Essex ss• March 25, 1960 Then personally appeared the above named George H. Matheson, President Treasu and. acknowledged the foregoing instrument to be the free act and deed of tfie LANTERI, CORPURATiON before me / ,Charles i;. Hatch Nbli—' October 22, 1p6u Yr aommiWm npv Essex,ss. Recorded nar. 251 1960 at 35m past 12P.M. •`,-`598 ALTERNATIVE ACCESS REPORT October 211997 Location: 1 Dale Street, North Andover, MA Pur ose Access for a proposed 7 lot Subdivision -Berrington Place I have been asked by the applicant, MPG Realty Corp., of 11 Old Boston Road, Tewksbury, MA 01876 to prepare a report on the feasibility of an alternative access to the subject property proposed as a 7 ms several months ago by t subdivision knwn as Berrington Kathleen Colwell,/ uesthet is pursuant to a review comment ade Planning Director of the Town of North Andover to Mr. Kenneth Grandstaff.. Prior to this report, I have previously submitted a brief to the Town of North Andover reflecting my view that an alternative access is not necessary pursuant to state statute and Town of North Andover regulations. Further, my brief was supported by the applicant's attorneys from the law offices of Philips, Gerstein, Holber & Channen of 25 Kenoza Avenue, Haverhill MA 01830. These briefs are currently in the Town's possession. Having said that, this report will only serve to address the special requirements of the zoning regulations Section 4.136 Watershed Protection District, Subsection 4.c.iv. "proof that there is no reasonable alternative location outside the non -disturbance and/or non discharged buffer zones, whichever is applicable, for any discharge, structure, or activity, associated with the purposed proposed use to occur". The following three properties to the northwesterly boundary of the subject parcel owned by Johaine Realty Trust, Barbara Grasso and James u RiceAlon theare usive executive homes northern boundary are with outside amenities such as pools and tennis co g two other parcels owned by Connecticut Financial, located in standing water. ThMorley Andover (town farm) in which the common boundaries property to the east of the subject site is bounded by a common wetland area as well. The following homes along the southerly boundary to the Dale Street, Appleton intersection, all abut the subject property, however, have wetlands that prevent access to the subject property. These parcels are owned by Harold Morley, Richard O'Toole, Frederick White, Michael and Virginia Bubar, Christine Melvin, Edward and Jacqueline Morgan, Jan and Stephanie Bajan, Agnes E. McCallister, Daniel and Joan Takesian, Gregory E. and Kathleen Garbick and R. Ashton Smith. All of these properties are bounded by wetlands and the accompanying watershed setbacks. Along Dale Street to the northwest, which is a one-way street going east, is the R. Ashton Smith and the Donald and Maria Hillner properties. These properties have single family residential homes and have wetlands or wetland setback restrictions. The sole property to the west of the subject site is owned by Joseph and Carol O'Connell. Their home is located to the southeasterly portion of their property along the southwesterly boundary of the subject parcel. Their home is in such a location as to prevent reasonable access between the O'Connell and Hillner homes. In addressing the Reasonable Alternative Access issue, I spoke with Mr. O'Connell and determined that though the property was not on the market, he would be willing to sell the parcel for an asking price of $250,000.00 dollars. This is even after he commented that his home is only worth $125,000.00 to $150,000.00 dollars. He would not entertain a roadway going in between his home and the Hillner home. In a discussion with Curt Young of Wetlands Preservation, Inc. (WPI), he determined that there are wetlands along the O'Connell left front boundary as well as in the central and northwesterly sections of the property. This would prevent any access from further west. In addition to the price of the property being extremely unreasonable, there are two other more important issues that deal with any access from this location. The first issue is access at a common point that becomes a safety hazard. The roadway location to Dale Street would be at the end of a curve that has neither the site stopping distance (SSD) or reasonable intersection site distance (ISD) for traffic having to enter Dale Street and turn left. As I had mentioned before, all traffic entering on this portion of Dale Street must turn left because of its one-way direction. The second issue is the more likely impact of a roadway being wedged between and close to, the O'Connell and Hillner homes. This would result in a likely decrease in their property values. For these reasons, this property as well as any of the others abutting parcels are not reasonable accesses to the subject parcel. In closing, the subject site has two existing means of egress. Both were created when the property was previously subdivided. Both access' ire remaining just that, access' to the main portion of the property. Whether it be a driveway, private or public roadway, access to the uplands to the northwest and central portion of the property can be gained from the westerly access currently shown on plans submitted to theTown. Therefore, it is my opinion that no reasonable alternative access can be gained to the property and should not be considered in dealing with the briefs prepared by me or the applicant's attorney. Respectfully submitted, Elmer A. Pease, II CPM, EA cc: Mike Gerstein, Esq. Attachments EAP/sp aAmoa„a.aoc DJC Two Dundee Park. Suite 301 Andover, MA 01810-3725 Office: 508-474-1994 Fax: 508-474-1778 December 30, 1997 Mr. Elmer A. Pease PD Associates, LLC 704 Londonderry Turnpike Auburn, NH 03032 RE: Berrington Place Dale Street North Andover, MA Dermot J. Kelly Associates. Inc. Traffic Engineering/Transportation Planning Dear Elmer: As per your request, DJK Associates, Inc. has evaluated an alternative dosed driveway location location to the ivision. The op #1.33 proposed Berrington DaletSt eet residential The alternative drive would tberapproximately 500 feet to is opposite #125 and #133 west of the current proposed driveway location. Adjacent to the current proposed site drive location, Dale Street is relatively tangent hich nd lcould evel. driAt the alternatict thevavailaboeasight distanction, Dale ereetiteis (generallylarge undesi undesirable curve, to locate a new negatively affect when an intersection on a section of roadway that exhibits a large radius curve, especially available tangent section of roadway exists. Should you have any additional questions, commdnts and/or if you require any additional information please do not hesitate to call me. Sincerely, DJK Assoicates, Inc. Dermot Kelly, P. E. DJK/ah cc: File --ca i v» ;:;—r Pease.doc NEIGHBORHOOD MAP OF DALE STREET hoo-d 89L6'ON XH/X,L .11P OZ:Zi 86/60/90 PD Associates, LL C ,Real Estate Comakants 704 Londonderry Turnpike, Auhurn, Nth 03033 June 3, 1998 North Andover Planning Board C/O M9. ]C. Wccn Bradley Colwell 30 School Stzect North Andovtr, MA 01345 Via Facsimilc: 778-6$8-9542 Dear Mr, Chairman: Ss NJ 3C J: Teleplwne #:(603)641-82#0 Fm=irnde #:(603)641-8882 Please accept this letter as a re4quest by NfPG Realty Corp to ,,withdraw our application for the repedtive heating, without prejudice. This is in reference to application made April 222", 1998 for the Berrington Place Subdivision located cn Dale Street and described at Map 37B, Lot #1. It is my understanding that the fess will be waived in the went we resubmit a re-auest for a repetitive nearing. Please call ifyeu need any additional information. RespcctfuJly subOle ind, � m�F.I +��ease Il Owners Represemarive EAP'sp Cc: Kenneth Crrandstaff Michael Cm-wein, Esq. N £O'd Zb96 889 909 -AOO -woo .,tanoput/ 444-40N VZI = II e6-60-unP Z00'd 99d6'ON XH/XZ OZ:Zi 86/60/90 $- Town of North Andover Richard S.Rowen Chairman O '�' TCF'. OF COMMUNITY DEVELOPMENT AND SERVICES Alison Lescarbeau V. Chairman Health Sanitarian 30 School Street John Simons, Clerk North Andover, Massachusetts 01845 /LLLIAM J. SCOTT Richard Nardella Director NOTICE OF DECISION �- Towns Outside Consultant x � U File Planning Board Any appeal shall be filled ` 'Z!E within (20) days after the • PLANNING -(9'7$) 688-9S3S date of filling this Notice - r978) 688-9511 • "lab NJAIN STREET in the Office of the Town = Clerk, Date June 5, 1998 Gate of Hearing May 19, 1998 e ,Tune i, 1998 Petition of MPG Realty Corp, Premises affected Lot 1 Daae Street Referring to the above petition for a special permit from the requirements of the North Andover Zoning SYlaw Section 10.8 so as to allow to determine wether there are specific and material changes in the application for a variance to allow a repetitive petition within the 2 year prohibitior After a public hearing giver~ on the above date, the Planning Board voted to allow applicants to the__ Speical permit- repetitive petition WITHDRAW W/O PREJUDICE based upon the following conditions: Signed' CC: Director of Public Works Richard S.Rowen Chairman Building Inspector Natural RescurceiLand Use Planner Alison Lescarbeau V. Chairman Health Sanitarian Assessors John Simons, Clerk Police Chief Fire Chief Richard Nardella Applicant Engineer Joseph V. Mahoney Towns Outside Consultant File Planning Board Interested Parties CONSERVATION - (978) 688 9534) • 1iFALT11 - (9-)S) 68X-9540 • PLANNING -(9'7$) 688-9S3S *i3UiLDlY6OFFfCE-,9"8) 688-9545 • "ZONT`JG 130ARD OF .)'PEALS - r978) 688-9511 • "lab NJAIN STREET 80' d zV96 889 909 -Dep -utoa uanOPuV q-4-- aN VT I t I i 86-60-unr LEONARD KOPELMAN KOPELMAN AND PAIGE, P. C. DAVID J. DONESKI DONALD G. PAIGE SANDRA M. CHARTON ELIZABETH A. LANE ATTORNEYS AT LAW ILANA M. QUIRK JOYCE FRANK PATRICIA A. CANTOR JOHN W. GIORGIO 31 ST. JAMES AVENUE JOHN R. HUCKSAM, JR. BARBARA J. SAINT ANDRE SUSAN M. CALLAHAN JOEL B. BARD BOSTON, MASSACHUSETTS 02116-4102 THOMAS P. LANE, JR. EVERETT J. MARDER BRIAN W. RILEY PATRICK J. COSTELLO ROBERT PATTEN JOSEPH L. TEHAN, JR. (617) 556-0007 MARK R. REICH ANNE -MARIE M. HYLAND FAX (617) 654-1735 MARY L. GIORGIO THERESA M. DOWDY KATHLEEN E. CONNOLLY PITTSFIELD OFFICE CHRISTOPHER J. GROLL EDWARD M. REILLY (413) 443-6100 KIMBERLY A. HOLLIDAY MICHELE E. RANDAZZO DIRECTOR WESTERN OFFICE DARREN R. KLEIN NORTHAMPTON OFFICE THOMAS W. MCENANEY WILLIAM HEWIG III (413) 585-8632 JONATHAN M. SILVERSTEIN DEBORAH A. ELIASON TIMOTHY J. ERVIN JEANNE S. McKNIGHT WORCESTER OFFICE KATHARINE I. GOREE JUDITH C. CUTLER (508) 752-0203 CHRISTOPHER J. POLLART RICHARD BOWEN KRISTEN B. MAGENDANTZ KATHLEEN M. O'DONNELL ROBERT T. FORD LAURA NELSON KLING June 9, 1998 BY FACSIMILE - (978) 688-9556 Zoning Board of Appeals North Andover Town Hall 120 Main Street North Andover, MA 01845 Re:;,,, MPGRealty Corp. — Second A plication Dear Members :of the Zoning:Board of Appeals: - - You have requested an opinion as to how the Board should handle a second application (received May 13, 1998) from MPG Realty Corp. seeking relief from the provisions of the Town's Zoning Bylaw. The Board had earlier received, on March 18, 1998, an application from MPG Realty Corp. for the same property. I have reviewed both applications and the new application appears to seek the identical relief sought in the original application. Accordingly, it is my opinion that the Board cannot act on the second application until the applicant complies with the requirements of G.L. c.40A §16 for so-called "repetitive petitions". Under Chapter 40A § 16, the Board may not act on this application unless it first votes, by a vote of at least four members, that the Board finds that there are "specific and material changes in the conditions upon which the previous unfavorable action was based...." The Board will then have to describe those changes. In addition, the Planning Board will have to agree to allow this repetitive petition, after giving notice to "parties in interest" of the time and place of the Planning Board meeting at which this matter would be considered. Based on the above itis my opinion that, at tonight's meeting, the Board may consider the issue of the repetitive petition and whether or not there have been "specific and material changes".. ;The Board may not, however, 'act on the merits of the application until the above described process has been completed. PRINTED ON RECYCLED PAPER KOPELMAN AND PAIGE, P.C. BY FACSIMILE - (978)688-9556 Zoning Board of Appeals North Andover Town Hall June 9, 1998 Page 2 I understand that Board member Walter Soule will not be available tonight, leaving the Board with only four members present. The Board may proceed tonight or may, particularly if the applicant so requests, continue this matter until the Board's next meeting when, I understand, Mr. Soule and the rest of the Board will be present. yours,Very truly JBB/das cc: Town Manager 52132/Nand/9999 N0� TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS Notice is hereby given that the Board of Appeals will hold a public hearing at the Stevens Memorial Library, 345 Main St., North Andover, MA on Tuesday the 9th day of June, 1998, at 7:30 PM to all parties interested in the appeal of MPG Realty Corporation, 11 Old Boston Rd., Tewksbury, MA 01876, requesting a Variance for property located on Lot #1, Dale St., from the requirements of Section 4, Paragraph 136.2 (b, (iv), 136.2 (f); 136.3(d),- to build a roadway with all required and related utilities and details within the 75' Conservation Zone within the the Watershed Protection District, for the construction of a roadway, in Table 1 & 2. Said premises affected are property with frontage on the North side of Dale St., Map 37B, Lot #1 Dale, (Berrington Place) which is in the R-1 Zoning District. Plans are available for review at the Office of the Building Dept., Town Hall, 120 Main Street, Monday through Thursday, 9:00AM - 1:OOPM. By Order of the Board of Appeals, William J. Sullivan, Chairman Published in the Eagle Tribune on 5/26/98 & 6/2/98 egalnov.'9 Ftmdmmry�tOt3��O-Lcdc ...�v�, `c0roo�`romo- _m >MmJp- � 0 O{po>Coa-1I0O£UG33M -.?§c�C Z ZZQ000tx:jQo;am pmem �N E UpmaNm m0m OOmcfEOQQ�oFt��o Z�mNgY?�o,,cmc �mLom> a�rooZ C1. 0) �>',Ldn°NLLO o A L0 nDN W �Lzomw«(oE�OaN(UO ntM0cE,m-o Town of North Andover OFFICE OF COMMUNITY DEVELOPMENT AND SERVICES 146 Main Street North Andover, Massachusetts 01845 REQUIREMENTS AND DIRECTIONS OF THE ZONING BOARD OF APPEALS FOR FILING APPLICATION FOR THE FOLLOWING: VARIANCES AND 'SPECIAL PERMITS PARTY AGGRIEVED A �9_ .a.:•..ti tea. 1. Every application for action by the Board shall be made on a form approved by the Board. These forms shall be furnished by the Administrative Secretary upon request. . Any communication purporting to be an application shall be treated as mere notice of intention to seek relief until such time as it is made on the official application form. All information called for by the form shall be furnished by the applicant in the manner therein prescribed. 2. Original and ten (10) copies of the application with a certified abutters list from the Assessors office. (Certified abutters list must accompany application.) 3. Ten (10) copies of the site plan, and one mylar. The mylar shall be stamped by a Registered Land Surveyor or a Professional Engineer (with discipline). The signature box shall have five lines for signatures. The mylar and decision are to be recorded with the Registry of Deeds after signed approval from the Zoning Board of Appeals. A copy of recording will accompany any building permit application according to M.G.L. Chapter 409, Section 14. 4. The fee for publishing the legal notice will be paid for by the petitioner when he/she delivers the legal notice to the newspaper. The legal notice shall be published twice, one week apart in the local newspaper. S. A copy of the legal notice must be sent to all abutters, by Zoning Board of Appeals Secretary, via certified mail return receipt requested at least 7 days prior to the public hearing. The petitioner will be responsible and billed for postage incurred for mailing of the legal notice and the decision. The Zoning Board of Appeals Secretary will also mail the Notice of Decision to the Abutters and the Petitioner. 1 of 8 F BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 6. Check for $25.00 for filing fee, made out to the Town of North Andover. 7. The applications must be time -stamped by the Town Clerk before acceptance by the Board of Appeals. 8. The petitioner or their agent or a legal representative must attend theublic hearing. P g 9. Any applications.i.nvolving State highways, such as Route 114, Route 125, etc., must have a copy of site plans submitted to Mr. Sherman Eidelman (or his successor) at the r MA Dept. of Public Works, District 4, 519 Appleton St., Hyl' Arlington, MA 02174 at least one week before the scheduled meeting. PLAN OF LAND TO ACCOMPANY PETITION Each application and petition to the Board shall be accompanied by the following described plan: The size of the plan shall be 11" X 17", drawn to scale, 1 inch C' equals 40 feet; it shall have a north point, names of streets, zoning districts, names and address of owners of properties within a minimum of 300 feet of the subject property, property lines and location of buildings on surrounding properties. The location of buildings or use of the property wheree-a variance is requested and distances from adjacent buildings and property lines shall be verified in the field and shown on the plan. The dimensions of the lot and the percentage of the lot covered by the principal and J accessory buildings and the required parking spaces shall be shown. Entrances, exits, driveways, etc. that are pertinent to the granting of the variance shall be shown. All proposed data shall be shown in red. Any topographical feature of the parcel of land relied upon for a variance, such as ledge, rock peat, or natural condition of water, brook or river, shall be shown on the engineering plan. When a variance is requested to subdivide a parcel of land, the dimensions and area of the surrounding lots may be taken from the deed or lotting plan for comparison of the size of the lots in the neighborhood, noted on the plan as such, and marked "approximate". The plan shall be signed and bear the seal of a registered land surveyor or civil engineer (with discipline). Any plans presented with the petition shall remain a part of the records of the Board PP of Appeals. If living quarters are to be remodeled, or areas are to be converted into living quarters, in addition to the plot plan, ten (10) copies of the following described plans shall be furnished: 2 of 8 RA.T nF nZ A� 1. A floor plan of each floor on which remodeling is to be done or areas converted into living quarters; 2. A floor plan showing the stairways, halls, doors opening into the halls, and exit doors of each floor or floors where no remodeling or converting is to be done; 3. The plans and elevations shall show all existing work. All proposed work shall be shown in red. The size of each plan shall be 11" X 17" or 17" X 22"; it shall be drawn to scale, 1/4 inch equals one foot. For petitions requesting variance (s) from the provisions of Section 7, Paragraphs 7.1, 7.2, 7.3 and 7.4 and Table 2 of the Zoning Bylaw for conveyance purposes only, a site plan, certified by a registered civil engineer or -land surveyor (with discipline), of the parcel of land with a structure thereon being conveyed, will be acceptable to the Board of Appeals provided: 1. The dwelling(s), structure(s), or building(s) were constructed prior to March 14, 1977. 2. The petition is not to allow construction or alteration to the dwelling(s), structure(s) or building(s) which will n result in the need for the issuance of a building permit. 3. The size of the plan shall be not smaller than 11" X 17" it shall be drawn to.scale, 1 inch equals 40 feet. The existing area of the parcel, frontage, and existing setbacks of the dwelling(s), structure(s) or building(s) being conveyed must be designated. 4. Proper space is to be provided on the site plans for the Board's signatures, as well as adequate space for the following information: Date of filing, date of public hearing, and date of approval. REQUIREMENT - Legal Notification to abutters in conjunction with an applicants request for a hearing on a variance or special permit before the Board of Appeals is an absolute requirement. Lists of abutters are to be certified by the Town Assessor, advertised and cleared through the Administrative Secretary of the Board of Appeals, in due time, before the hearing date. (See note 4 of page 4) FAILURE TO COMPLY WITH THIS PROCEDURE WILL NOT ALLOW THE PETITIONER TO BE PLACED ON THE ZONING BOARD OF APPEALS AGENDA. 3 of 8 Dom.. n n-) a U NOTES: 1. Variance(s) lapse if not exercised in one (1) year from date of decision. The variance(s) must be recorded in the Registry of Deeds and a copy of same -returned to the Zoning Board of Appeals and G' the Building Inspector. 1 a. A one time extention of six months may be granted if applied for, before the one year anniversary date has exprired. 2. A Special Permit lapses if not exercised in two (2) years. This Special Permit must be recorded in the Registry of Deeds and a copy of same returned to the Zoning Board of Appeals and the Building Inspector. 3. All plans and elevations presented with the petition shall remain a part of the records of the Board of Appeals. 4. The last day to petition the Board of Appeals is the Tuesday 22 days in advance of Board meeting and before the first publication of the Legal Notices in the local newspaper. Regular Board of Appeals meetings are the second Tuesday of each calendar month. 5. The administrative Secretary's business hours are as follows: Monday 9:00 AM to 2:00 PM Tuesday 9:00 AM to 1:00 PM Wednesday 9:00 AM to 2:00 PM Thursday 9:00 AM to 2:00 PM Friday No Business Hours 4 of 8 ,)01'CE �RixUs �iA�' TORN CLF�.� NORTH ANUOy�R Received by TcKo `9le jk44 P ` TOWN OF NORTH ANDOVER, MASSACHUSETTS BOARD OF APPEALS APPLICATION FOR RELIEF FROM THE ZONING ORDINANCE Applicant MPG Realty Corp Address 11 Old Boston Road Tewksbury, MA 01876 Tel. No. 978-851-9395 1. Application is hereby made: a) For a varo the requirements of Section 4 Paragraph, — b �iv�}and Table 1&2 of the Zoning Bylaws. 136.3 d b) For a special Permit under Section Paragraph of the Zoning Bylaws. c) As a Party Aggrieved, for review of a decision made by the Building Inspector or other authority. 2. a) Premises affected are land and building(s) numbered _ Street. b) Premises affected are property with frontage on the North (X) South ( ) East ( ) 'West ( ) side of Street. Street, and known as No. Map 37B, Lot #1, Dale Street. c) Premises affected are in Zoning District R-1 and the premises affected have an area of1,305,493 square feet and frontage of 50, & eet . X7`1_ 5 of 8 D— nc n-) n' a3. Ownership: a) Name and address of owner (if joint ownership, give all names) : R. Ashton & Gwendolyn C. Smith;C/0 Trustee Geoffrey Smith a 15 Driftwood Drive, North Bradford, CT 06471 Date of Purchase 3-25-1960 Previous Owner Lantern Corporation a b) 1. If applicant is not owner, check his/her interest in the premises: X Prospective Purchaser Lessee Other 2. Letter of authorization for Variance/Special Permit required. 4. Size of proposed building: N/A front; feet deep; Height N/A stories; feet. Da) Approximate date of erection: N/A b) Occupancy or use of each floor: N/A c) Type of construction: N/A 5. Has there been a previous appeal, -under zoning, on these premises? No If so, when? 6. Description of relief sought on this petition To build a roadway with all required & related utilities and details within the 75' Conservation Zone. 7. Deed recorded in the Registry of Deeds in Book 912 Page 187&188 Land Court Certificate No. Book Page The principal points upon which I base my application are as a follows: (must be stated in detail) See attached Addendum 11A° a I agree to pay the fi ing fee, advertiin sg in newspaper, and incidental expenses* Dgn to o titioner(s) 6 of 8 D PI—Ir nc n� nc DESCRIPTION OF VARIANCE REQUESTED ZONING DISTRICT: R-1 Required Setback Existing Setback Relief or Area or Area Requested Conservation Zone 75' None Pursuant to Plan Lot Dimension Area Varies Street Frontage 50' & 186+/- feet Front Setback Side Setback (s) N/A Rear Setback N/A Special Permit Request: Not Applicable 7 of 8 Rev nF nq q� IN JAN 3 0 '1993 CASE # TOWN OF NORTH ANDOVER ZONING BOARD OF ADJUSTMENT OWNER'S AFFIDAVIT I, the undersigned, owner of property located at Dale Street and identified as Map 37B- Lotfl. 1. ' do hereby authorize MPG Realty Corporation and its representatives 11 Old Boston Road Tewksbury, MA 01876 to make the following request with respect to the above-described property: Any and all requests for the approval of Berrington Place an 8 Lot subdivision with roadways and all improvements as shown on plans prepared by Allen &Major Associates Inc of Woburn. MA as may be required by the Watershed Protection Bylaw and the Planning Board Please refer to Special Permit gpplication and accompanying documentation for submittal of this request for ZBA consideration. R. Ashton & Gwendolyn C. Smith rustee Geoffre Signature w Y Smith 15 Driftwood Dr. North Bradford, CT 06471 Address Janu= 23 1998 Date nazba.doc rl a L4 i Z --1 140 7 a curpovtoon duly custlitbe-J U,det, tht 14ws of Commonwerl.tt Of Mar.6 I—ing It, -SU-1 place of bv%6,,ds at LtX tvq; tun r HiddLesex C "'tY Mistsc!'Jictu- fit c,!r-,idcr&tj:nj paid, r(All, 10Fj. Ashton Sfftit% and :;wendcjle-r. C. Smith, husband And wffC As "On.nn ti6 by the Ent i t•,; ty of North AINduver, , L &Ftex Celan Ly, t tr, w611 alitfilf'o, c8Drng11!c; Iwo certAtit I)orcels v[ land it I Wa I e d off 1),,t,: Street in svid ticrth A11,10vitr, bounded And deitcribcd or tn11 oQ:. ?A:'. Elf NQ. I sioginiing At the Northwtnt'.r ly earner 11: laciA n.;,w or Jon.acrly nilltiur, being OXOwlt rm Luc Ko. 17 A 011"Flun ct Appleton &st.atcs, :ialr- Street, North ..ttdrver, Naa%;. ounicr, Lantern. Corp.. Lahinccr, Ralph U. 15rasseur, ?Iarch 27, 10;711 Ctdd plat, being recordod it, ttit'hLyrth Uigtrioc dl: t.sNex I(egLstry ,,. ;-ede a K. Plait No. 5442; thmice runnint; Northerly by a clone wall A11(t of C&409un seven hundred forty -Lour and t-L/j(,O tcet -.i:ora or to an iron pipe at land of Leland As slioin an &AiA pj(,ij; I:`vtice, runnitif. utterly by D scone wall formirti, the Northerly boune.rti,v at Lot No. 2U on said plan and by n eitcl.. form.ing thtt. Norl:14erLy boundary or Lot:x -No. 21 and 22 on said PLani thence cu!it1nuin), by Land of said 4 -land &a -shown on "Plan of Latul in North Andover lover "dr". 0-1cd by I)en:tl l!. E. floan Jr., PtUt-unry 21), 19f6" reco ­de4 I*t the worth U(1;LrJc-.V of F44ox R@[:'Istry of Deeds eia r1an iia. 3200 A total di4tonot: of 2,025 -more Leet or less. To the :oriiur of di atone wall At: Iniiij ni, it(sticrt Hfllet- an shown on cafe) 103V IWARd plea; thenitc: rurt,fmr end r-unnirij, �5vkttItcrLy and by &Aid land of .-41.ler In pnr,� by a stone wall, thrnt� -I hundredWricry-one and 46/11K: Jett to-Lhc-r 1,.nd vt ltiibc.rt Miller As 8110wa or, esid last: hanged ratan; th(Irtcc running Wvaterly by Lite Nurtotrly boundary of latid cat Ilobert I.iliei , vhi'.j.0 Lijller, %illite and 4%& allowti on said 1aat jjjjr.,.Cd j,lz,,j, [ve "I'd 01/LOc) feet to 3 3t:unt wall &c LAW; et .*1*cI:1s,1r:i on astict plat,; t,i,!nce vurrAni,, olid runnin.,. No."Chk-l-ly Uy tie ntz.ne null t.116 lard of SitnUorn, one hundred VwvI%*.;y-n! . tie end icer ':;. ti -e :,at'r;ti:nVL4:rlj E ctirtivr if aaid Sanborn lona, --%c. oltown on sa:';j jj�ui.: %oLegice turaxim; I slid runni.nZ Westerly by tne 14or�lievl� I,Qutx.j1ry or land of SSnhorn and Peters as shom or. cAld ol&t., twL, hundred c1.6titv thrc:,, rvct. ' -C. all iron pipe at cne Norm­cszcrJy cornt, ut. said L­.-occ t01*rJ11Jj, ATid r-jnnln-,:-;outherly !.V the deszc:rly Linc of: attid t.irerr. :at,i 'corded' AS; tlivvAi an plan ro N,;. 3442 referred to a,,ovc, it dictancia of fuut- Ittlildred Llifrt " itine acid 5,/IV) f.:, t t- j,41 9,14c Last no:ucd plan; L-IC11CI: T'Uj;t'4 I J%L, at-.OUj: dert,:; i,y g slant wal. I And 11.01.1 >trcct "a sli owit or, aoi.d 1;,n1 :.m:cd plan :n car.rsev measuring fort/-aovcti uA tit ;(.j feet, fifty &t 1:! b *; / I •�) c C t , *Ix 611d 5A,/lov fcct rind fift/ fc­1 tc., .1 M1011t: UOLn<1. KS Qho�, cli said pLan; L.,cncc; uxr.•ttin7. er,0 ia a �Cnera. *t!m NorrhzrLy direction I.y cl;rve of a J)rC_­-­C0 trued Aq .: C06 ov.,. . �dlttr. It, two cvut'sen, niutt3urinj, ar.,' 4L ).!IeK: f t a., tnt-ae , feet z! hanorcti thirty and Oo/Li-i fecvt to e. rictle o0und 3T. Uht. corner of Is-ld or Antire:ozi, as attot..T, on ioiti 1(i.NL tiAri.ed plan; Lurv'An,'and runninp i4e-tterly by tioe `orrh�rlly h:iuti� o, !,inei of Aadrehen, Firkligm and YoRe litinered at.,. Leet to lan,i of etild Crentee mr%t,kcrI F.A. on ssid :)Iuti: L tience .vrnin,. and r-jr-nin,. Ecrrherly by land of ceid grAtiree nin.-z:,­f;,v, rzec lior'e x - Ur ICSS to thc Notnettatcr)y clr::cr of asid So 1,h Im-j; *:Icnce, Currin:: and rutlnin!j ',(cstrrly b7 land oL fit­­–.'�.. Ot, SA:d ;)Ian two :,uttdred of ht e•iglit ar.cl Lck:t it: p -111r; and runnir. in A Southwitsitarlv directitri 137 tt curve -Inviri.! n o: Ui*cc-t Iii'lldrUO SeVCrtV feet, It dii-LOI:C(: .,. '_wj t%tondrec WIC, 'J2,'Ilkj Leet t� it (.rill ei,11C It, a aivt,e -Ail. a-, 1)aLe itr.c: as a #,• atioun oi said plan: tootles turnir.6 and mitinin; Ncrt ri-astcl-ly t.' a stone wall sTid.Dale Street feet r_)t-v ,1' less z.atont 113—il In the Jouthr-Aoterly corner of Lot t—, 17 & as a rteic5 'Lan; tnence in a renvral. Horttio,tute-,1v djj-cr,.cjo:j Ily j:kc F'o-.;thcnqLc:--1) boundary of Lot 17 A in t:!tr4o courae6 r''1' ' '1' "r.t'r I I . C_ LliLrry-unc- andninety-fourLest. ninety-four c:,A 7e niincz-cd L, I,L,. And '5/'LU ftvt J,. Oc Northeasterly C01*11e1, OL &.(0 LCL I -A aS 8r.01-1 0:1 7 `u hcicrc m< .- Cr,nr ccs ,to :ct, x -, <;u 22. -„ Ota' a .. l:SLi�>:, 03, aC�orrtcc lest, .�,^C a: ,'.r. •.s: ... .�•. !c,)L' I; l r ,1 J 7. LI L_IF. +1_ER.3TE1 HIJ�i; T 1—tet; — �_—�08=1:IIS a..•.,•. said plan; t1+cLtee turning end tvluting hurth:,eatarly Dy Lu[ 17 4 17 Connd A uta tlaltntnglilac,tJO amort•eur aleeeq�lW Ceet to the {wiht o'. begliliaing. acres ;ARCEL II Bcin{; shown As Lot No. 16 un tae Souc:icrly aide of hale treat safd North Andover cn Pi An ontitled "Plan of Land in ltorL'h j'$ 8 Andover Maesowned by un'lief. L. ilagan Jr. 'ebrvar, 9, 1956. ;aid plan belnI; recorded in said t-eittsrry as plan 110. 32J6, ' sAld premises s heln;; more oarUicularl>• boa:nded nnl. deaeribed as 1vllowaa �.•+'. a (_ NU. TUL'ASTcRLY two hundred fifty fact more of, lees by CAIe SirCetl 3JUTIlIaLMMLY one liundrekt sixty ei((ht fcc.t , :sort of Leas by Lot N: - 1.5 un said pLan Atoi ek (� owruvEsrLI(LY two hunared twenty Lvu feet mora or Leas by lsntl how ILEI r,J L' or LvmcrLy Nvnglond Powre Company ne �Irown on .� said 1.101). CuntaininC :41,50V agaare feet anvrc cl- :Las uccording to said plan, 1 ` Being part of the premir•as cuttveyed Lu the ;rrr•tur Corporation by decd of Uaniel G.. I,ogau Jr. et tax dated April 16, 1)50, recordecl in Laid Iccgistr„ tlo"1• J31 Pa6e 5::6, < Sald nretnises are conveyed subject to a takin6 by the Lsaex County Aouania/iunere Col- I.Le 1clocativ1l of LAIC St:rtet, recorded in eA:d kt gleety, Juok 9i3, :'aJ c 435, i.i r.0 far as _hc same af_eete LLv u1.Cllin described prelalaea. licanln and inl.clldin J G g, and .lcrulry eonyey'lus to tnc grnnleee of All the land Ste North Andover ;iv« a[anding of record in the name of j Lantern Corporati..n wllethcr or net the t<n+,c is Lnciuciod uithit, the bouedarlea ,.f else Above e:caer;Wd parecla. Said prtlaiess are eonveye.cl .object to L1ta tsxea i<,r.• tilt current year teltich the f;t•sutca:o herein aaa:nu o:ld ai;ree to •.al•. I ' Tho grantor corpol'atlon nel-rwith con4evs to :he said q;saLve: ari and ull ruahts to riaAagr.s an y whl::h I referred to abcve.. Lt may 11-1(' its a )(-silt of t.ht• 7aklng <� U. J. fGlf'ral Ttcvormv Siarnpa �•I•�t,Cl.l••ct•[ It^r•'I I'.z�n: $tamp. t sum ..f S _i:.I(1' .•I t::,l.:,•I:<: ti 4.1 ,nalI it �,'.:,I .11111•1!i. 'I fit vitt trfis IU4mat, utt sale coit!'(AtArit;N .� _ 6a1 uased its corporate Beal to Le lurC.o a.'F.aed anj lbes<<4cc:r u tx . pr reslyd, xknowlcdted art.i ' CrGvneJ in i.t nrlrc and LehaH ty Gaut'L.e H. KaLheaon, Jr. treasurer it• free l dare t Paid hereto dw: wthcwUe. h r• 4,dae twetut:y-1`.f.t ✓1? D `'• J •' day of Harsh In the year one tbo-.und n<,( hoadred and sixty ; �f l CJ .-1 I Sime,! and .Weel In rrt+eaee ofF-J ' r :• •r l L417lGLt: CliKi':)f••i.-.''iuN .' •,`ja rrkli_deAL and 11'e Aat:r r \ I A�r II \_J artlnmm�wruL•tl of l$aeourLnarRd .'•. Ee,tey " M,,ccll 25, 19 60 �• � Tf.,n perrauxliy apr'!avf du' abuuc n -%:cd Ceur'ye A. He;::c•r.ul,, ?ree ldent . Ircm0Jd i ni ac mowleda�ed th< ferei'olrt w.slr:useAt 1,, Le 11,c (t:e a!t and dcc.i •)f �6 i.A:. i EfN GL)RP0FiA7JUtJ 1 }k� `u hcicrc m< .- Cr,nr ccs ,to :ct, x -, <;u 22. -„ Ota' a .. l:SLi�>:, 03, aC�orrtcc lest, .�,^C a: ,'.r. •.s: ... .�•. !c,)L' I; l r ,1 J 7. LI a7 Of PARTIES Of INTERM: PA Of 31ECf PROPOM 0 a a 0 0 o. a 0 0 0 0 0 0 0 CERT1.67 1 - G o DA o �.. s IFIA EW 0 CERT1.67 1 - G o DA o �.. a 7 OF PARTIES Of 1NTIERFYT: pxc OF QIJEGT PROPUM !AP ADDRESS n CERT. BY : DATA Q ...law1l, •-Y ma� M -fMWAVlArj/ I a� �i CERT. BY : DATA Q .1 of PARIIES Of INM EST: PAGE Of t� CERT. BY: DATE; . O W AIM .-za t ♦ ♦ /11 R / • ' ! .��� _ ♦ - j wOWN- t� CERT. BY: DATE; . O 0 7 Of PART7 E 9 Of iNT�RL� g7: 7� Of �_ 3JECT PROPERTY L1P PAR r► T"E ADDRESS a a_r qu C1 0 e i2 d DVi r 'c%' )e w i' a -------------- f e , a 4 IV4 r /P -z , 12 ! a oCERT. BY : ' DATE: O T OF PAFM f -S Of thlTffM: PAGE -J OF UECY PflOPUM [AP I PAR x NWE AODRM CERT.BY : DATE: GCS TKOvS C lPe�� m. _ z - c ,y J" m W Goo cv i rtIV9 9 an dr a N -Tanelq-tJ L C w T.QusT �- ard ,,. 40, r ' n r a? to �e N *A e It- 1",4 Q i�p CERT.BY : DATE: ADDRESS v v �i � 0 v t I� � '� '� i, � 'o 'o r i N- ct w E� ALTERNATIVE ACCESS REPORT October 27, 1997 Location: 1 Dale Street, North Andover, MA Purpose Access fora proposed 7 lot Subdivision -Berrington Place 1 have been asked by the applicant, MPG Realty Corp., of 11 Old Boston Road, Tewksbury, MA 01876 to prepare a report on the feasibility of an alternative access to the subject property proposed as a 7 lot subdivision known as Berrington Place. This request is pursuant to a review comment made several months ago by Ms. Kathleen Colwell, the Planning Director of the Town of North Andover to Mr. Kenneth Grandstaff.. Prior to this report, I have previously submitted a brief to the Town of North Andover reflecting my view that an alternative access is not necessary pursuant to state statute and Town of North Andover regulations. Further, my brief was supported by the applicant's attorneys from the law offices of Philips, Gerstein, Holber & Channen of 25 Kenoza Avenue, Haverhill MA 01830. These briefs are currently in the Town's possession. Having said that, this report will only serve to address the special requirements of the zoning regulations Section 4.136 Watershed Protection District, Subsection 4.c.iv. "proof that there is no reasonable alternative location outside the non -disturbance and/or non discharged buffer zones, whichever is applicable, for any discharge, structure, or activity, associated with the purposed proposed use to occur". The following three properties to the northwesterly boundary of the subject parcel owned by Johaine Realty Trust, Barbara Grasso and James Rice, are exclusive executive homes with outside amenities such as pools and tennis courts. Along the northern boundary are two other parcels owned by Connecticut Financial, inc'. and the Town of North Andover (town farm) in which the common boundaries are located in standing water. The Morley property to the east of the subject site is bounded by a common wetland area as well. The following homes along the southerly boundary to the Dale Street, Appleton intersection, all abut the subject property, however, have wetlands that prevent access to the subject property. These parcels are owned by Harold Morley, Richard O'Toole, Frederick White, Michael and Virginia "ar, Christine Melvin, Edward and Jacqueline Morgan, Jan and Stephanie Bajan, Agnes E. McCallister, Daniel and Joan Takesian, Gregory E. and Kathleen Garbick and R. Ashton Smith. All of these properties are bounded by wetlands and the accompanying watershed setbacks. Along Dale Street to the northwest, which is a one-way street going east, is the R. Ashton Smith and the Donald and Maria Hillner properties. These properties have single family residential homes and have wetlands or wetland setback restrictions. LJ The sole property to the west of the subject site is owned by Joseph and Carol O'Connell. Their home is located to the southeasterly portion of their property along the southwesterly boundary of the subject parcel. Their home is in such a location as to prevent reasonable access between the O'Connell and Hillner homes. EIn addressing the Reasonable Alternative Access issue, I spoke with Mr. O'Connell and determined that though the property was not on the market, he would be willing to sell the parcel for an asking price of $250,000.00 dollars. This is even after he commented that Ehis home is only worth $125,000.00 to $150,000.00 dollars. He would not entertain a roadway going in between his home and the Hillner home. In a discussion with Curt Young of Wetlands Preservation, Inc. (WPI), he determined that there are wetlands along E, the O'Connell left front boundary as well as in the central and northwesterly sections of the property. This would prevent any access from further west. In addition to the price of the property being extremely unreasonable, there are two other more important issues that deal with any access from this location. The first issue is access at a common point that becomes a safety hazard. The roadway location to Dale Street would be at the end of a curve that has neither the site stopping distance (SSD) or reasonable intersection site distance (ISD) for traffic having to enter Dale Street and turn left. As I had mentioned before, all traffic entering on this portion of Dale Street must turn left because of its one-way direction. The second issue is the more likely impact of a roadway being wedged between and close to, the O'Connell and Hillner homes. This would result in a likely decrease in their property values. For these reasons, this property as well as any of the others abutting parcels are not reasonable accesses to the subject parcel. In closing, the subject site has two existing means of egress. Both were created when the property was previously subdivided. Both access' ire remaining just that, access' to the main portion of the property. Whether it be a driveway, private or public roadway, access a to the uplands to the northwest and central portion of the property can be gained from the westerly access currently shown on plans submitted to theTown. Therefore, it is my opinion that no reasonable alternative access can be gained to the property and should not r be considered in dealing with the briefs prepared by me or the applicant's attorney. Respectfully submitted, Elmer A. Pease, II CPM, EA cc: Mike Gerstein, Esq. Attachments O EAP/sp raamoana.aoc I: ��� Dermot J. Kelly Associates. Inc. Traffic Engineering/Transportation Planning Two Dundee Park. Suite 301 �+ Andover, MA 01810-3725 Office: 508-474-1994 Fax: 508-474-1778 December 30, 1997 �J Mr. Elmer A. Pease PD Associates, LLC r, 704 Londonderry Turnpike Auburn, NH 03032 RE: Berrington Place Dale Street North Andover, MA Dear Elmer: r j As per your request, DJK Associates, Inc. has evaluated an alternative driveway location to the proposed Berrington Place 7 -lot residential subdivision. The current proposed driveway location is opposite #125 and #133 Dale Street. The alternative drive would be approximately 500 feet to west of the current proposed driveway location. Adjacent to the current proposed site drive location, Dale Street is relatively tangent and level. At the alternative driveway location, Dale Street exhibits a large radius curve, which could negatively affect the available sight distance. It is generally undesirable to locate a new [� intersection on a section of roadway that exhibits a large radius curve, especially when an available tangent section of roadway exists. Should you have any additional questions, comments and/or if you require any additional information please do not hesitate to call me. aSincerely, DJK /Assoicates, Inc. Dermot Kelly, P. E. DJ K/a h cc: File 0' \\4770\c\DJK\JOB\355-Lt02 Elmer Pease.doc NEIGHBORHOOD MAP OF DALE STREET Y• 0 �i. Y W, r. ^g�,, � ^1... t., d ,�� .. f �. • y` d j 'SSD: ,r;.?• : Acis �•11��, �� ,,. lfA:� v�x3•.dt "'1+'74v �5X ..1� r.�Ri4 ' v 0� e• �y V7� Tr, d �SeWOA <f3efautb - 2 MarkersLength ='3 miles, 3000 feet Campbell Forest - 042' 38' 18.9" N. 071' 03' 2 Berrington Pface - 062" 40' 53.1 r N, 071.05' Copyright (C) 1998. Fardr isions. trrc flu �_,Vlrl iu..7u aFarm 5 Commonwealth of Massachusetts � taffjj tSF� y 'a rrcm DEP Fare r4o. [ 242-871 tlo Ue trw•cN.7 try UEPJ City, Town North Andover MPG Realty Corp. a 001,c 1n 1 Order of Conditions Massachusetts Wetlands Protection Act G. L. c. 131, saa and under the Town of North Andover's Bylaw Chapter 178 NORTH ANDOVER CONSERVATION COKMISSION MPG Realty Corp. Q (Name of Applicant) 11 Old Boston Road Tewksbury, MA 01876 Tnis Order is issued and delivered as follows: c/o MPG Realty Trust (tame of properly owner) Address Same cy hand deliver✓ to applicant or representative on !dale) JCy certified mail, return receipt requested on January 8, 1998 (calc) )project is located at Lot 1 Dale Street T_he prccerty is recorded at the Registry of Nr, rr-hP r„ r'grn 912 page 187 & 188 �ccic n. nificate (if registered) -rte rNet;ca of Intent Icr this project was filed on July 3, 1997 (dale) D;.was uciic hearing as c!csed on December 17 • 1997 (date) r ,npings Ncr:.n Andover Conservation Commission has re./re`:/ed the abcVP rP!�fof,C_ ,''iCtrCe Cl e _ Olrnnt arc rians dna .as he!d a cuclic hesrino on the r re)ect. used on the information availROle tc !!re •I SCC at this time. the h„S Celermiiie j Il,, -,t e area cn which the prccosed work is to be done is sicniticant to the Ic(lo%•,rnc,r,te(osts in occcrc r,ce '/•ilh . the Presumptions of Significannce s.ei jjc in the reeulatrcns !or each Area Sub)ect to Prolec:rcr, Uncer the c:a. 8 Recreation -ct (thee! -,as acGrccnate): Ch. 178: Prevention of Erosion & Sedimentation Ch. 178_ Wildlife tiic P;..,r,.. water supply Flood control ❑ Land containing- shellfish [ Fisheries Private water supply Storm damace oreventien Ground water supply Prevenucn of pollution Protection of wiidlile habitr:t' 1325.00 F01 $112.50 ictal t=;iing Pee Sucmitted State Share _ ity/ ICwn Share $212.50 lee in nr.ccss of S?51 �atal Refund Cue S CitylTown Portion S State Portion S (1/7 total) (1/2 total) EDEP FELE # 242 - 871 Therefore, the North Andover Conservation Commission (hereafter the NACC) hereby finds that the following conditions are necessary, in accordance with the Performance Standards set forth in the State Regulations, the local ByLaw and Regulations, to protect those interests noted above. The NACC orders that all work shall be performed in accordance with said O conditions and with the Notice of Intent referenced above. To the extent that the following conditions modify or differ from the plans, specifications or other proposals submitted with the Notice of Intent, the conditions shall control. GENERAL CONDITIONS 1. Failure to comply with all conditions stated herein, and with all related statutes and other regulatory measures, shall be deemed cause to revoke or modify this Order. 2. This Order does not grant any property rights or any exclusive privileges; it does not authorize any injury to private property or invasion of property rights. However, the NACC, agent of the NACC or the Department of Environmental Protection (DEP) reserves the right to enter and inspect the property at all reasonable times, until a Certificate of Compliance is issued, i to evaluate compliance with this Order of Conditions, the Act, the North Andover Wetland ByLaw and Regulations, 310 CMR 10.00, and may require. any information, measurements, photographs, observations, and/or materials, or may require the submittal of any data or information deemed necessary by the NACC for that evaluation. Further, work shall be halted on the site if the NACC, agent or DEP determines that any of the work is not in compliance with this Order of Conditions. Work shall not resume until the NACC is satisfied that the work will comply, and has so notified the �j applicant in writing. �1 3. This Order does not relieve the permittee or any other person of the necessity of complying with all other applicable federal, state or local statutes, ordinances, by-laws or regulations. 4. The work authorized hereunder shall be completed within three years from the date of this order. 5. This Order may be extended by the issuing authority for one or more periods of up to one year each upon application to the issuing authority at least thirty days (30) prior to the expiration date of the Order (Refer to Section VIII (p.15) of the North Andover Wetland Regulations). n n CAWinw0rd\00C\242-871.doc 1 NACC 1/8/98 U DEP FILE # 242 - 871 a6. The NACC reserves the right to amend this Order of Conditions after a legally advertised public hearing if plans or circumstances are changed or if f i new conditions or information is so warrant. 7. Where the Department of Environmental Protection (DEP) is requested to make a determination and to issue a Superseding Order, the Conservation Commission shall be a party to all agency proceedings and hearings before the Department. 8. The conditions of this decision shall apply to, and be binding upon, the applicant, owner, its employees and all successors and assigns in interest or control. These obligations shall be expressed in covenants in all deeds to succeeding owners of portions of the property. 9. The term "Applicant" as used in this Order of Conditions shall refer to the owner, any successor in interest or successor in control of the property Oreferenced in the Notice of Intent, supporting documents and this Order of Conditions. The NACC shall be notified in writing within 30 days of all transfers of title of any portion of property that takes place prior to the �j issuance of a Certificate of Compliance. r. 10. The proposed work includes: Construction of a seven (7) lot residential subdivision including portions of the roadway, grading, utility installation and stormwater management systems. CAWinword\000\242-871.doc 2 NACC 1/8/98 Ly DEP FILE # 242 - 871 11. The work shall conform to the following (except as noted in the remainder of this document where revisions may be required): Notice of Intent filed by: Drainage Report Prepared by: Stormwater Operations and Maintenance Plan a Prepared by: Geo -Technical Evaluation Prepared by: MPG Realty Corporation 11 Old Boston Road Tewksbury, MA 01876 DATED 7/3/97 Allen & Major Associates, Inc. Entitled "Drainage Calculations for Berrington Place" DATED REV 11/5/97 Wetlands Preservation, Inc. Entitled "Operations and Maintenance Plan" DATED REV 11/14/97 JGI Jaworski Geotech, Inc. Entitled "Geotechnical Evaluation - Dale Street Retaining Walls." DATED 12/8/97 Plans prepared by: Allen & Major Associates, Inc. Entitled "Preliminary Plan of Land - Grading & Drainage Plan" Sheet 3A DATED REV 12/16/97 Entitled "Preliminary Plan of Land - Grading & Drainage Plan" Sheet 3B DATED REV 12/16/97 Entitled "Profile - Glenore Circle" Sheet 4C DATED 11/13/97 CAWinw,0rd\000\242-871.doc 3 NACC 1/8/98 EDEP FILE # 242 - 871 Entitled "Pre -development" Sheet D1 DATED REV 11/13/97 Entitled "Post -Development" Sheet D2 DATED REV 11/13/97 Entitled "Rational" Sheet D3 DATED REV 11/13/97 Entitled "Erosion Control Details" Sheet 9 DATED 11/13/97 12. The following wetland resource areas are affected by the proposed work: Buffer Zone to Bordering Vegetated Wetland (BVW). These resource areas are significant to the interests of the Act and Town ByLaw as noted above. These resource areas are also significant to the recreational and wildlife interests of the ByLaw. The applicant has not attempted to overcome the presumption of significance of these resource areas to the identified interests. 13. The NACC agrees with the applicant's delineation of the wetland resource areas on the site as shown on the plans dated referenced herein. Prior to the issuance of a Certificate of Compliance, the applicant will submit a plan showing the site's wetland delineation ata scale identical to the Town wetland map for this location. 14. The NACC finds that the intensive use of the upland areas and buffer zone proposed on this site will cause further alteration of the wetland resource areas. In order to prevent any alteration of wetland resource areas a twenty five foot (25') No -Disturbance Zone (except at the roadway entrance in the vicinity of wetland flags A5 through A13 and B13 through B16) and a fifty foot (50') No -Construction Zone shall be established from the edge of the adjacent wetland resource area. The Conservation Administrator and/or other agents of the NACC do not have the authority to waive these setbacks as established under the local bylaw. No disturbance of existing grade, soils or vegetation is permitted in the No -Disturbance zone. (See Appendix 5 of the local Regulations). I! 15. The owners of the project and their successors in title, in the event they proceed to alter areas subject to the Commission's jurisdiction under the order, agree that the Order does not in itself impose upon the Town any a C A W in wordl00C\242-87 I . doe 4 NACC 1/8/98 0 DEP FILE # 242 871 responsibility to maintain the proposed drainage system and that said Town shall not be liable for any damage in the event of failure. By acceptance of a this Order, the owners agree to indemnify and hold harmless to the Town and its residents for any damage attributable to alterations undertaken on this property pursuant to the Order. Issuance of these Conditions does not in any way imply or certify that the site or downstream areas will not be subject to flooding, storm damage or any other form of water damage. Maintenance of the drainage system, if accepted by the Town as part of a public wav, becomes the responsibility of the Town. 16. There shall be no increase in the post development discharges from the storm Y other system or ane s g drainage othchanges in post development conditions that alter the post development watershed boundaries as currently depicted in the Notice of Intent and approved by this Order of Conditions, unless specifically approved in writing by the Commission. 17. This document shall be included in all construction contracts, subcontracts, and specifications dealing with the work proposed and shall supersede any conflicting contract requirements. The applicant shall assure that all contractors, subcontractors, and other personnel performing the permitting work are fully aware of the permits terms and conditions. Thereafter, the contractor will be held jointly liable for any violation of this Order resulting from failure to comply with. its conditions. PRIOR TO CONSTRUCTION E- - WJ 18. No work shall be undertaken until all administrative appeal periods from this Order have elapsed or, if such an appeal has been filed, until all proceedings before the Department or Court have been completed. 19. This Order shall be recorded by the applicant at the Registry of Deeds immediately after the expiration of all appeal periods. No work shall be undertaken until the Final Order has been recorded in the Registry of Deeds or the Land Court for the district in which the land is located, within the chain of title of the affected property. In the case of recorded land, the Final Order shall also be noted in the Registry's Grantor Index under the name of the owner of the land upon which the proposed work is to be done. In the case of registered land, the Final Order shall also be noted on the Land Court Certificate of Title of the owner of the land upon which the proposed work is to be done. The recording information shall be submitted to the North Andover Conservation Commission on the form at the end of this Order prior to commencement of the work. Any Order not recorded by the C:\W inword\OOC\242-871. doc NACC 1/8/98 DDEP FILE # 242 - 871 applicant before work commences may be recorded by the NACC at the applicant's expense. 20. A sign shall be displayed at the site not less than two square feet or more than three square feet in size bearing the words "Massachusetts Department of Environmental Protection, File Number 242-871." 21. Any changes in the submitted plans caused by the applicant, another Board's decision or resulting from this Order of Conditions must be submitted to the I SCC for approval prior to implementation. If the NACC finds said changes to be significant, the NACC will call for another public hearing (at j the expense of the applicant). Within 21 days of the close of said public hearing the NACC will issue an amended or new Order of Conditions. Any nerrors found in the plans or information submitted by the applicant shall be considered as changes. The proposed project may be still under review by n other local or state boards or agencies. This may result in changes to the project plans or wetland impacts. If any such changes occur a revised plan l and an explanation of the revisions shall be submitted to the NACC for review and approval prior to the start of construction. No work shall begin on a project until written approval has been granted by the NACC. 22. It is the responsibility of the applicant, owner, and/or successor(s) to ensure that all conditions of this Order of Conditions are complied with. The project engineer and contractors are to be provided with a copy of this Order of LJ Conditions and referenced documents before commencement of l 1 construction. 23. Prior to any work on-site the applicant shall submit to the NACC for approval a sequencing plan for construction and erosion and sedimentation FL]control with supporting plans and details as appropriate. 24. Wetland flagging shall be checked prior to start of construction and shall be (—, re-established where missing so that erosion control measures can be l properly placed and wetland impacts can be monitored. The proposed limit of work shall be shall be clearly marked with stakes or flags and shall be confirmed by the NACC. Such markers shall be checked and replaced as necessary and shall be maintained until all construction is complete. Workers should be informed that no use of machinery, storage of machinery or materials, stockpiling of soil, or construction activity is to occur beyond this line at any time. All flags used for the above purposes shall be of a color a.. different from other flagging used on the site. 25. A row of staked hay bales backed by trenched siltation fence shall be placed between all construction areas and wetlands. The erosion control C :\W inword\00C\242-871. doc Lo N NACC 1/8/98 U DEP FILE # 242 - 871 barrier will be properly installed and placed as shown on the plans approved and referenced herein and shall be inspected and approved by the NACC prior to the start of construction and shall remain intact until all disturbed C areas have been permanently stabilized to prevent erosion. All erosion prevention and sedimentation protection measures found necessary during construction shall be implemented at the direction of the NACC. The NACC reserves the right to impose additional conditions on portions of this project to mitigate any impacts which could result from site erosion, or any noticeable degradation of surface water quality discharging from the site. For example, installation of erosion control measures may be required in areas not shown on the plan(s) referenced in this Order of Conditions. Should such installation be required by the NACC, they shall be installed within 48 hours of the Commissions request. 26. The applicant shall have on hand at the start of any soil disturbance, removal or stockpiling, a minimum of seventy five (75) hay bales and sufficient stakes for staking these bales (or an equivalent amount of silt fence). Said bales shall be used only for the control of emergency erosion problems, and shall not be used for the normal control of erosion. 27. A check payable to the Town of North Andover shall be provided in the amount of $39,000 which shall be in all respects satisfactory to Town ' II E Counsel P with the North Town Treasurer, and the NACC, and shall be posted Andover Town Treasure through the NACC before commencement of work. CSaid ,deposit of money shall be conditioned on the completion of all conditions hereof, shall be signed by a party or parties satisfactory to the NACC, and Town Counsel, and shall be released after completion of the Cproject, provided that provision, satisfactory to the NACC, has been made for performance of any conditions which are of continuing nature. The applicant may propose a monetary release schedule keyed to completion of specific LJ portions of the project for the NACC's review and approval. This condition is issued under the authority of the local ByLaw. 28. The applicant shall be responsible for placing signs on each parcel designating the applicable lot number as depicted on the plans approved and referenced herein. 7 29. The applicant shall designate a professional Wetland Scientist as an L"Erosion Control Monitor" to oversee any emergency placement of controls and regular inspection or replacement of sedimentation control devices. The j f name and phone number of the erosion control monitor must be provided to the NACC in the event that this person has to be contacted, due to an emergency at the site, during any 24-hour period, including weekends. This person shall be given the authority to stop construction for erosion control JI CAW i sword\000242-871.doc 7 NACC 1/8/98 aDEP FILE # 242 - 871 purposes. The erosion control monitor will be required to inspect all such devices and oversee cleaning and the proper disposal of waste products. a Cleaning shall include removal of any entrapped silt. At least once during each week in which construction activities occurs on-site and for as long thereafter as ground remains unstabilized, the applicant shall submit a a written report from the erosion control monitor to the NACC certifying that, to the best of his/her knowledge and belief based on a careful site inspection, all work is being performed in compliance with this Order of Conditions. aThe erosion control monitor must visually inspect all sedimentation/erosion control measures and assume responsibility for their maintenance on a weekly basis and that they are functioning as intended. In addition, all wetland resource areas must be visually inspected for siltation, turbidity, and/or other water quality impacts. 30. Once these above mentioned pre -construction requirements are complete, the applicant shall contact the Conservation Office prior to site preparation or construction and shall arrange an on-site conference with an NACC representative, the contractor, the engineer, wetland scientist and the applicant to ensure that all of the Conditions of this Order are understood. This Order shall be included in all construction contracts, subcontracts, and specifications dealing with the work proposed and shall supersede any conflicting contract requirements. The applicant shall assure that all contractors, subcontractors and other personnel performing the permitted work are fully aware of the permit's terms and conditions. Thereafter, the contractor will be held jointly liable for any violation of this Order of Conditions resulting from failure to comply with, -its conditions. The applicant or contractor shall notify the NACC in writing of the identity of the on-site construction supervisor hired to coordinate construction and to ensure compliance with this Order. A reasonable period of time shall be provided as notice of the pre -construction meeting (e.g. 72 hours). SUBDIVISION LOT DEVELOPMENT 31. The NACC shall be notified in writing of any lot line or number changes with a copy of a plan showing these changes prior to any work on these lots. CAWinword\00C\242-871.doc 8 NACC 1/8/98 UDEP FILE # 242 - 871 DURING CONSTRUCTION 32. Immediately upon completion of each dwelling foundation, and prior to further construction activities associated with the site, the applicant shall complete a plan prepared by a Registered Professional Land Surveyor (R.P.L.S.) which accurately depicts the foundation location and its proximity to wetland resource areas as approved under this Order of Conditions. Said plan shall be submitted to the Conservation Administrator for approval. 33. Upon beginning work, the applicant shall submit written progress reports every month detailing what work has been done in or near resource areas, and what work is anticipated to be done over the next period. This will update the construction sequence. 34. Approved de -watering activities anticipated at the roadway entrance location shall be supervised and witnessed by the designated erosion control monitor. This designee must be on-site while work specific to the roadway retaining wall installation is occurring and until this section is complete. Dewatering activities shall be conducted as shown on the approved plans and shall be monitored daily by the erosion control monitor to ensure that sediment laden water is appropriately settled prior to discharge toward the wetland resource areas. No discharge of water is allowed directly into an area subject to jurisdiction of the Wetlands Protection Act and/or the North Andover Wetland ByLaw. If emergency de -watering requirements arise, the applicant shall submit a contingency plan to the Commission for approval which provides for the pumped water to be contained in a settling basin, to reduce turbidity prior to discharge into a resource area. 35. All catch basins shall contain oil/ gasoline traps, and it shall be a continuing condition of this order, even after a Certificate of Compliance is issued, that the oil/gasoline traps in the catch basins be maintained. All catch basins shall be free of all accumulated silt and debris before a Compliance is issued and the owner or his/her agent shall so specify in the request for Compliance. 36. The sewer lines on the site shall be tested for water tightness in accordance with North Andover DPW standards. L 37. Any fill used in connection with this project shall be clean fill, containing no trash, refuse rubbish or debris, including but not limited to lumber, bricks, 1 plaster, wire ,lath , paper, cardboard, pipe, tires, ashes, refrigerators, motor vehicles or parts on any of the foregoing. n CAWinw0rd\000\242-871.d0e 9 NACC 1/8/98 0 DEP FILE # 242 - 871 0 38. No exposed area shall remain unfinished for more than thirty (30) days, n unless approved by the NACC. 39. No regrading in the buffer zone shall have a slope steeper than 2:1 0 (horizontal: vertical). Slopes of steeper grade shall be rip -rapped to provide permanent stabilization. 40. There shall be no stockpiling of soil or other materials within twenty-five (25) feet of any resource area. 0 41. Washings from concrete trucks, or surplus concrete, shall not be directed to, any drainage system, or wetland resource area. 42. All waste generated by, or associated with, the construction activity shall be contained within the construction area, and away from any wetland resource 0 area. There shall be no burying of spent construction materials or disposal of waste on the site by any other means. The applicant shall maintain dumpsters (or other suitable means) at the site for the storage and removal of 0 such spent construction materials off-site. However, no trash dumpsters will be allowed within 50' of areas subject to protection under the Act or local ByLaw. 43. Accepted engineering and construction standards and procedures shall be 0 followed In the completion of the project. 44. During and after work on this project, there shall be no discharge or spillage 0 of fuel, or other pollutants into any wetland resource area. If there is a spill or discharge of any pollutant during any phase of construction the NACC shall be notified by the applicant within one (1) business day. No 0 construction vehicles are to be stored within 100 feet of wetland resource areas, and no vehicle refueling, equipment lubrication, or maintenance is to n be done within 100 feet of a resource area. AFTER CONSTRUCTION 0 45. No underground storage of fuel oils shall be allowed on any lot within one - hundred (100) feet of any wetland resource area. This condition shall survive this Order of Conditions, and shall run with the title of the property. This 0 condition is issued under the authority of the Town's Wetland protection ByLaw. CAWinword\00C\242-871.doc 10 NACC 1/8/98 EDEP FILE # 242 - 871 46. Fertilizers utilized for landscaping and lawn care shall be slow release, low - nitrogen types (< 5%), and shall not be used within 25 feet of a resource area. a Pesticides and herbicides shall not be used within 100 feet of a wetland resource area. This condition is issued under the authority of the Town's Wetland Protection ByLaw and shall remain in perpetuity. a47. No road salt, sodium chloride, or other de-icing chemicals shall be used on paved surfaces, and any arrangement for snow removal shall so stipulate due oto the importance of the site and wetlands. Permanent signs designating "No -Salt Zone" and "No -Snow Stockpiling Zones' shall be displayed in prominent locations to be approved by the Conservation Administrator aand a representative from the Department of Public Works. 48. After completion of work, the applicant shall permanently mark the edge of wetland resource areas and the No -Disturbance Zone with signs or markers designating their sensitivity. This will ensure no further a inadvertent encroachment into the wetland. These permanent markers are subject to review and approval by the NACC. The applicant shall instruct all agents to explain these markers to buyers/lessees/landscapers and all apersons taking over the property from the applicant. 49. Upon completion of construction and grading, all disturbed areas located a outside resource areas shall be stabilized permanently against erosion. This shall be done either by loaming and seeding according to SCS standards. If a the latter course is chosen, stabilization will be considered complete once vegetative cover has been achieved. 0 50. Upon completion of the project, the applicant shall submit the following to the Conservation Commission as part of a request for a Certificate of a Compliance: a. A letter from the applicant requesting a Certificate of Compliance. b. The name and address of the current landowner. a c. Signed statements from the individual property owners shall be submitted with the request for a Certificate of Compliance indicating that they have read and understood the Order of Conditions prior to a purchasing their property. d. The name and address of the individual/ trust or corporation to whom the compliance is to be granted. e. The street address and assessor's map/parcel number for the project. f. The DEP file number. g. A written statement from a Registered Professional Civil Engineer of the Commonwealth certifying that the work has been conducted as shown on the plan(s) and documents referenced above, and as r? conditioned by the Commission. CAWinword\00C\242-871.doc 11 NACC 1/8/98 u P�I DEP FILE # 242 - 871 A C h. n "As -Built" plan prepared and signed and stamped by a Registered Professional Civil Engineer of the Commonwealth, for the public g r , record. This plan will include: ➢ "As -Built" post -development elevations of all drainage & n stormwater management structures constructed within 100 feet of any wetland resource area. III lJ lam' ➢ "As -Built" post -development elevations and grades of all filled �I or altered wetland resource areas including the encompassing buffer zone which is regulated as a wetland under the local wetland bylaw. (�' C ➢ Distances from structures to wetland resource areas. Structures include (but are not limited to) septic systems, additions, fences, sheds, stone walls, pools, retaining walls, and approved decks. ➢ A line showing the limit of work and the extent of existing erosion control devices. "Work" includes anv disturbance of soils or vegetation. ➢ Location of all subsurface utilities entering the property. 52. The following special conditions shall survive the issuance of a Certificate of Compliance (COC) for this project: ➢ 25' No -Disturbance Zone and a 50' No -Construction Zone shall be established from the edge of adjacent wetland resource areas except in those locations approved under DEP # 242-871. Future work within 100' of existing wetland resource areas will require a separate filing with the NACC (refer to Section XI (page 18) of the Regulations for performance standards within these zones) The Conservation Administrator and/or other agents of the NACC do not have the authority to waive these setbacks as established under the local ByLaw; ➢ Maintenance of catch basins (Condition #35); C➢ Discharge or spillage of pollutants (Condition # 44); j ➢ Prohibition of underground fuels (Condition #45); ➢ Limitations on the use of fertilizers, herbicides, road salts, de- icing compounds and pesticides (Conditions #46 & 47). CAWinword\OOC\242-871.doc 12 NACC 1/8/98 EDEP FILE # 242 - 871 ➢ The attached "Stormwater Operations and Management Plan" P g including Best Management Practices. No additional filings will be required to conduct maintenance of the above referenced system and plan. EJ CAWinw0rd\00C\242-871.doc 13 NACC 1/8/98 2,.)p. :124Z - Issued Sy NORTH AN Sign,atura;sj _.44� G 0 242-871 n Conservation Commissicn �IThis Crder must be signed by a majority of the Conservation Commission. Cn this 7th day of January 1998 before me Joseph W. Lynch, Jr. personally appeared , to me known to be the person described in and who executed the foregoing instrument and acknowledged that he, she executec the same as hisiher free act and deed. Notary Puttic My commission expires �1 )Tha apoficant. the owner. any person aggrieved by this Order, any owner of land abutting the land upon which the pr000seo work is to be iQonc o. any ten residents of the city or town in which such land is located are hereby notified of their right to request the Department of l—+ �nvxCnmental Quality Engineering to issue a Superseding Order, providing the request is made by certified mail or hand delivery to tile Oecartmeni. with the aporopnate filing fee and Fee Transmittal Form as provided in 310 C -MR 10.03(7), within len Cays from the (3310 01 issuance of this Order. A copy of the request shall at the same time be sent by certified mail or hand delivery to the Conservation Commission and the applicant. rt If you wish. to appeal this decision under the Town Bylaw, a complaint must be filed in Superior Court in accordance with M.G.L. Chapter 249 S.4 RECORDING 1Nr10R.X—kT=ON: Oetacn on dotted line and submit to the North Andover Conservation Cpmm. prior to commencement of work. C.............................................................................................................................................................................................. i................... Nor.h Andover Conservation Commission, 120 lain St., North Andover Iss 01 4u To Please be advised that the Order of Conditions for the project at ..File Number 242-8.71 has been recorded at the Registry of Deeds, Northern Esse-x ahas been noted in the chain of title of the affected property in accordance with General Condition 8 on It recorded land, the instrument number which identifies this Iransac:ion is II registered land• the document number which identities this Iransaction is Signature 511A and 19 AonhCanl Berrington Place Definitive Subdivision Conditional Approval The Planning Board herein APPROVES the Definitive Subdivision for a seven (7) lot subdivision known as Berrington Estates Place. MPG Realty Corporation, 11 Old Boston Road, Tewksbury, Iv[A 01876, submitted this application on January 16, 1998. The area affected is located off of Dale Street in the R-1 Zoning District. The Planning Board makes the following fundings as required by the Rules and Regulations Governing the Subdivision of Land: A. The Definitive Pian, dated January 16, 1998, last revised on 313198, includes all of the information L: indicated in Section 3 of the Rules and Regulations concerning the procedure for the submission of L plans. B. The Definitive Plan adheres to all of the design standards as indicated in Section 7 of the Rules and Regulations except as noted in Condition 17 Waivers. C. The Definitive Plan is in conformance with the purpose and intent of the Subdivision Control Law. D. The Definitive Plan complies with all of the review comments submitted by various town O departments in order to comply with state law, town by-laws and insure the public health, safety, and welfare of the town. Finally, the Planning Board finds that the Definitive Subdivision complies with Town Bylaw requirements so long as the following conditions are complied with: I ) Environmental Monitor: The applicant shall designate an independent environmental monitor who shall be chosen in consultant with the Planning Department. The Environmental Monitor must be available upon four- (4) hour's notice to inspect the site with the Planning Board designated official. The Environmental Monitor shall make weekly inspections of the project and file monthly reports to the Planning Board throughout the duration of the project. The monthly reports shall detail area of non-compliance, if any and actions taken to resolve these issues. 2) Prior to endorsement of the plans by the Planning Board the applicant shall adhere to the following: a) A Development Schedule must be submitted for signature by the Planning Board, which conforms to both Sections 4.2, and Section 8.7 of the North Andover Zoning Bylaw. The schedule must show building permit eiigibility by quarter for all lots. b) A Site Opening Bond in the amount of five thousand ($5,000) dollars to be held by the Town of North Andover. The Site Opening Bond shall be in the form of a check made out to the L� LTown of North Andover that will be placed into an interest bearing escrow account. This amount shall cover any contingencies that might affect the public welfare such as site -opening, clearing, erosion control and perfonnance of any other condition contained herein, prior to the posting of the Roadway Bond as described in Condition 4(d). This Site Opening Bond may at the discretion of the Planning Board be rolled over to cover other bonding considerations, be E released in full, or partially retained in accordance with the recommendation of the Planning Staff as directed by a vote of the NRPB. c) The final subdivision plans must be reviewed and approved by the outside consultant, the l 1 Planning Department and D.P.W. d) A covenant (FORM I) securing all lots within the subdivision for the construction of ways and municipal services must be submitted to the Planning Board. Said lots may be released from the covenant upon posting of security as requested in Condition 4(d). e) The applicant must submit to the Town Planner a FORM M for all utilities and easements placed on the subdivision. f) All application fees must be paid in full and y.-eri6ed by the Town Planner. g) The applicant must meet with the Town Planner in order to ensure that the plans conform to the Board's decision. A full set of final plans reflecting the changes outlined above, must be submitted to the Town Planner for review endorsement by the Planning Board, within ninety (90) days of filing the decision with the Town Clerk. h) The Subdivision Decision for this project .must appear on the mylars. i) All documents shall be prepared at the expense of the applicant, as required by the Planning Board Rules and Regulations Governing the Subdivision of Land. 3) Prior to ANY WORK on the site, a) Once the subdivision plans have been recorded, the applicant must apply for and receive a variance for work within the 75' Conservation Zone under the North Andover Watershed Protection District Zoning Bylaw. No work will be allowed on the site until the variance has been issued. If the request for a variance is denied, this subdivision will be in violation of the North Andover Zoning Bylaw and the approval will be deemed rescinded. b) Yellow "Caution" tape must be placed along the limit of clearing and grading as shown on the Capproved plan. The Planning Staff must be contacted prior to any cutting and or clearing on site. c) All erosion control measures as shown on the plan and outlined in the erosion control plan must be in place and reviewed by the Town Planner. 4) Prior to any lots being released from the statutory covenants: a) Three (3) complete copies of the endorsed and recorded subdivision plans and one (1) certified copy of the following documents: recorded subdivision approval, recorded Covenant (FORM 1), recorded Growth Management Development Schedule, and recorded FORIM M must be submitted to the Town Planner as proof of recording. b) All site erosion control measures required to protect off site properties from the effects of work on the lot proposed to be released must be in place. The Town Planning Staff shall detern>ine whether the applicant has satisfied the requirements of this provision prior to each lot release and shall report to the Planning Board prior to a vote to release said lot. c) The applicant must submit a lot release FORM J to the Planning Board for signature. d) A Performance Security in an amount to be detemvned by the Planning Board, upon the recommendation of the Department of Public Works, shall be posted to ensure completion of the work in accordance with the Plans approved as part of this conditional approval. The bond must be in the form of a check made out to the Town of North Andover. This check will then be placed in an interest bearing escrow account held by the Town. Items covered by the Bond may include, but shall not be limited to: i) E as -built drawings ni) sewers and utilities iii) roadway construction and maintenance CI iv) lot and site erosion control v) site screening and street trees vi) drainage facilities vii) site restoration E viU)final site cleanup A Perfortnance Security may be established for each phase individually. 5) Prior to a FORM U verification for an individual lot, the following information is required by the Planning Department: a) A "One Way" sign must be placed on Dale Street visible from the new subdivision roadway in a location approved by the DPW. b) The Planning Board will review the status of the Subdivision and vote to verih, FORM t 0 3 applications as appropriate and in conformance with this decision. c) An as -built plan must be submitted to the Division of Public Works for review and approval prior to acceptance of the sewer appurtenances for use. d) If a sidewalk is to be constructed in front of the lot, then such sidewalk must be graded and staked at a minimum. e) The applicant must submit a certified copy of the recorded FORM J referred to in Condition 4(c) above. 0 A plot plan for the lot in question must be submitted, which includes all of the Mowing: i) location of the structure, ii) location of the driveways, iii) location of the septic systems if applicable, iv) location of all water and sewer lines, v) location of wetlands and any site improvements required under a NACC order of condition, vi) any grading called for on the lot, vii) all required zoning setbacks, viii) Location of any drainage, utility and other easements. g) All appropriate erosion control measures for the lot shall be in place. The Planning Board or Staff shall make final determination of appropriate measures. h) Lot numbers, visible from the roadways must be posted on all lots. 6) Prior to a Certificate of occupancy being requested for an individual lot, the following shall be required: a) Sprinkler systems must be installed in all homes per N_AFD requirements. b) The roadway must be constructed to at least binder coat of pavement to properly access the lot in question. Prior to construction ofthe binder coat, the applicant shall ensure that all required inspection and testing of water, sewer, and drainage facilities has been completed. The applicant must submit to the Town Planner an interim as -built, certified by a professional engineer, verifying that all utilities have been installed in accordance with the plans and profile sheet. c) All necessary permits and approvals for the lot in question shall be obtained from the North Andover Board of Health, and Conservation Commission. 4 on - a '74.cti o00 one -nan _JannnUW u -i_ nwi acn-rn oc-F:;'--ACiW d) Pennanent house numbers must be posted on dwellings and be visible from the road. n e) There shall be no driveways placed where stone bound monuments and/or catch basuis are to Lbe set. It shall be the developer's responsibility to assure the proper placement of the driveways regardless of whether individual lots are sold. The Planning Board requires any driveway to be r moved at the owner's expense if such driveway is at a catch basin or stone bound position. 7) Prior to the final release of security retained for the site by the Town, the following shall be completed by the applicant: a) An as -built plan and profile of the site shall be submitted to the DPW and Planning Department for review and approval. b) The applicant shall petition Town Meeting for public acceptance of the street. Prior to submitting a warrant for such petition the applicant shall review the subdivision and all remaining work with the Town Planner and Department of Public Works. The Planning Board shall hold a portion of the subdivision bond for continued maintenance and operations until such time as Town Meeting has accepted (or rejected in favor of private ownership) the roadways. It shall be the developer's responsibility to insure that all proper easements have been recorded at the Registry of Deeds. E8) The Applicant shall ensure that all Planning, Conservation Commission, Board of Health and Division of Public Works requirements are satisfied and that. construction was in strict compliance with all approved plans and conditions. 9) The Town Planner will review any signs utilized for this project. The applicant must obtain a sign permit as required by Section 6 of the Bylaw. The Planning Board shall approve any entrance structures. The applicant must remove any lighting used for the entrance signs prior to acceptance of the subdivision. 10) The applicant shall adhere to the following requirements of the Fire Department: a) Open burning is allowed by permit only after consultation with the Fire Department. b) Underground fuel storage will be allowed in conformance with the Town Bylaws and State Statute and only with the review and approval of the Fire Department and Conservation Commission. 11) There shall be no burying or dumping of construction material on site. 12) The location of any stump dumps on site must be pre -approved by the Planning Board_ 13) The contractor shall contact Dig Safe at least 72 hours prior to commencing any excavation. Ir - J 774.CG OOr] C2 -/\C. NRrZ •111' _ I] Ar'Y''11.1 Iin Ir .l J(l rte- rIN OG - G% - .J dw 14) Gas. Telephone, Cable, and Electric utilities shall be installed as specified by the respective utility companies. 15) Any action by a Town Board, Commission, or Department which requires changes in the roadway alignment, placement of any easements or utilities, drainage facilities, grading or no cut lines, may ybe subject to modification by the Planning Board. 16) The following waivers from the Rules and Regulations Governing the Subdivision ofLand, North rAndover. Massachusetts, revised February, 1989 have been granted by the Planning .Board: a) Section 7(A)(4) Dead -End Streets: The Planning Board herein grants a waiver of approximately 100' for the street length. The applicant has demonstrated that the street length j will have no adverse impact on the Watershed Protection District. b) Section 7(D)(2) Sidewalks: The sidewalks will abut the curb per requirement of DPW. n c) Section 7(E)(1) Street Trees: The street trees will be placed outside of the ROW per �I requirement of DPW. d) These waivers have been granted in an effort to minimize the amount of cutting and filling required on site thereby decreasing the amount of erosion and siltation on site. (� e) The utilities must be installed and the streets or ways constructed to binder coat by �i 01f 22, Zcncod (two years from the date permit granted). If the utilities are not installed. the streets or ways are not constructed to binder coat and the Planning Board has not granted an extension by the above referenced date, this definitive subdivision approval will be deemed to have lapsed. 17) This Definitive Subdivision Plan approval is based upon the following information which is incorporated into this decision by reference: a) Plans entitled: "Definitive Plan of Land — Berington Place", ten sheets dated January 16, 1998 last revised 3/3/98. Prepared by Allen & Major, Woburn MA b) Reports entitled: i) "Statement of Environmental and Community Impact", dated January 15, 1998. ii) "Water Quality and Best Management Practices (BMP) Evaluation". Berrington Place, Dale Street, North Andover, Massachusetts, dated July 14, c_ cr r.- mss. t -c own c�rirt- -nam •���rs-� .�anr�niiH 1#-1 jnw1 _jin-rn oti-r--7--t d 1997, revised October 8, 1997. Conservation Administrator Director of Public Works Health Administrator Building Inspector Police Chief Fire Chief Assessor Applicant Engineer File Berrington Estates - subdivision 7 cn•a '7.1+.c9-1 o00 one •ratan .aannnLJW a� i..�nsi aon- rn oe---r--7--AdW Notice to APPLICAYT/T�_rH CLialK and CerLiSication of Arno., of Plaruu-Mg Board ou L1a1initira Suhdivisioa PIan o,ntitlod: Berrington Place gp; Allen & Major Associates, Inc. dated. :;anuar-y 16, , 1q 98 The North Arxkrver Planning Board has voted to AFPRDVE said pLa.:, sub;ect to the following ccrdiitic=i I. That "'no record owners of the :object ;arm forthwith ezc_ate and record a "coverar:t ru: g with the land", or otherwiso provide sec,)-itc ,a, the corp strncticr. of wig and the I.nstaLation of municipal services ri t's.i.n said su6- di7i3ion, all as prvvi(!eS trj G.L. c. 41, S. 81-U. Z. 'That all such corIstructicn and instal;ations shall _n all respects ccnfcrTd tc the gcvcra:� rules az�d ea_i:,'t`ions of tbls Board. 3. That, az required by the -North Andover Board of Roal.a i.n its report to this Board, no buiaiirg or other structure shah be built or placsd upon Lots No. as shown, os said Plate without the prior ccnse t of said Board of Health. Other cooditian.s: In the event that no appeal sha.1 have beta taker free said approval within twent7 drys from h1his date, the )forth aadover Plana as BoArd VVLl forthwith Cher -after endorse its formal approval _ipon amid plLn. r r a • s e • • • * M • w a ar • • • * s w • w ♦ t a ♦ 1� • r • • a a • • r th `�.adover ?L�ualn�3as.-d Ian, Tor r � Richard S_ Rowen —i..— .--- --- -..ter. . i— Pv �7pn� �t m r,- rnzy is In the event that no appeal sha.1 have beta taker free said approval within twent7 drys from h1his date, the )forth aadover Plana as BoArd VVLl forthwith Cher -after endorse its formal approval _ipon amid plLn. r r a • s e • • • * M • w a ar • • • * s w • w ♦ t a ♦ 1� • r • • a a • • r th `�.adover ?L�ualn�3as.-d Ian, Tor r � Richard S_ Rowen —i..— .--- --- -..ter. . i— A. MESITI DEV. CORP. Fax: i--S�-851-9366 Apr 30 '98 10:40 P.01/08 Towle of North Andover 1999 ONCE OF , COMMUNITY DEVELOPMENT AND SERVICES }( 30 School Street North Andover, Massachusetts 0IN5 wII.I.IAM !. SCO'^T Director NOTICE OF DECISION Any appeal shall be filled within (20) days after the date of filling this Notice in the Office of the Town Clerk. t1O Date April 2a, .t998 Date of Hearing 3/ 17/9a, 4/-7/98 & 4/21/98 Petition of KPG: Realtx corporation _ Premises affected Referring to the above petition for a special permit from the requirements of the North Andovpr 7rning Bylaw gai.,tson 4 T 3F; LhL L,)_ 1111 Watershed Protection District so as to allow to. build a roadway, watexline and detention basin„ within th,e non discharge, non disturbance and conservation buffer zones. After a public hearing givers on the above date, the Planning Board voted to APPROVE the Watershed special Permit based upon the following conditions: SignedL:9.0 CC: Director of Public Works Richard S.Rowen, Chairman Building Inspector Natural Resource/Land Use Planner Alison !_escarbeau, V. Chairman Health Sanitarian Assessors John Simons, Clerk — Police Chief CApplicant Fire Chief Richard Nardella Engineer Joseph V. Mahoney Towns Outside Consultant File Planning Board interested Parties CONSERVATION - (998) 588 9536 • 111,1LT11• (973) 68i1*954u • 11 -INNING, 0781 "8"-9,35 *RUILDINGOFFICE . (978) 699,95,45 - *ZONINC HOARD nr APPEALS - (918) 68x.9541 • *146 MAIN STREET F�, H.MESITI DEV. CORP. Fax: 1-508-851-9Y-6 Hpr 30 "?8 10:41 Town of North Andover OMCE OF COMMUNITY DE'VELOPMEN'T A.ND SERVICES VILLIAM ,'. SCOTT Director Apnl23, 1998 Ms. Joyce Bradshaw Town. Clerk 120 Main Street North Andover, MA 01845 30 School Street North Andover, Massachusetts 013+5 Re- Watershed Special Permit -Lot l Vale Street Dear Ms. Bradshaw, P. 02/08 t•CR7►, a � c The North Andover Planning Board held a public hearing on Tuesday evening March 17, 1998 at T-30 p.m. in the Department of Public Works, upon the application of Lot I Dale Street, North Andover, Ma 01845 to request a special perrrut under Section 1.436 (3) (b) (c) (d) of the Watershed Protection District of the North Andover Zoning Bylaw. The legal notice was properly advertised in the North Andover Citizen on January 28 &.February 4, 1998 and all parties of interest were duly notified. The follolAing members were present: Richard Rowen, Chairman, Alison Lesearbeau, Vice Chairman, John Simons, Cleric, Joseph V. Mahoney and Richard Nardella. The petitioner was requesting a special permit to allcw to construct a roadway, waterline and detention basins within the non discharge, non disturbance and conservation buffer zones. The premises affected is Lot I ,Dale Street in the Residential - 1 (R-1) Zoning District and the Watershed Protection_ District. Elmer Pease and Eric rieyiand of Allen &: Major Associates were present to represent Lot I Dale Street. Mr. Pease highlighted the boundaries on the plan Mr. Pease stated that they moved the detention basin outside of the 75' conservation zone. Ms. Colwell stated that there is deadline for the subdivision for the April 1998 meeting. Mr. Rowen stated that we can't approve the subdivision with out the special permit. Ms. Colwell stated that we still have not received DPW's comments. Mr. Rowen asked Ms. Colwell if they had any outstanding issues that she imows of. Ms. Colwell stated that there were not any for the subdivision. Kerry NIcCoIlister of ^06 Dale Street, had concerns with the detention basin and culverts discharging onto his property from the Bear HiII subdivison_ An abutter of 128 Dale Street had concerns with the excavation and the removal of the culverts. Lam' �I !OARD Or APPEALS 688.9341 BUILDING 688-9343 CONSERVATION 688-9530 HEALTH 688-9540 PL kiNNING 688.9535 r, A. MESITI DEV. COPE. Fax:1-508-851-9366 Apr 30 '98 10:41 P.03/08 Mr. Nardella asked how big the culverts are now. Mi. Pease stated that they are 12", Dave Rand showed the Board pictures, Mr. Nardella asked what DPW's continents are. Ms. Colwell went over DPW's concerns. Mr. Nardella asked if DPW has responded to any concerns of the abutters. Mr, jVfcCoilister stated that he has spoken to Bill Hmurciak, and he is unaware of the lateral culverts, Nfi'. McColIister stated that he doesn't understand how the can put the waterline under the culverts,'Mr. McCollister also stated that they were told the runoff from Bear HiII would not be a problem, it seems to him that part of the Boards job is to protect the existing homeowners. Mr. Rowen stated that we don't have to make the applicants solve the existing problems. Dan Takesian of 198 Dale Street, stated that if you put up homes then the water will have no place to go. We already have Bear Hill's water runoff Mr. Takesian stated that their backyards are filled with water up to their knees and with any serious rain they won't have a backyard. Mr. Pease stated that we have already ?one through all this with ConCom and have M done several tests. r. Pease stated that Mr. Chessia has reviewed the Stcrm Water Management and we have addressed every concern they had. Mr. Pease stated that any other concerns with Planning, there isn't anything we can do. The Beaver Pond is downstream, Sandra Timmons of 205 Dale Street, stated that when Bear all was put in there was supposed to be a dry retention area put in and now the baffle pipe is gone, Dave Rand of 280 Dale Street, stated that he has looked for the plans for the dry retention area's for Bear Full but, can't find there. This would have been built for, I00 year storm and if the pipe was there it would hold up the water but, I believe a homeowner removed it. Mr. Rowen asked if a homeowner definitely removed the pipe. Mr, Rand stated that he can't say that for sure. Mr. Rowen stated that the applicants are required to ensure they don't create problems but they are not responsible for curing the Bear Hill problem, l"fr. Simons stated that the assumptions may not be correct because your not taking ail the potential areas to a count. Mr. Pease stated that we have answered all these same questions, Mr. Pease stated that they have to make sure that the water drains on their property correctly. Mr, Nardella asked Ms. Colwell if Mr. Cb.essia has any more comments on this parcel. Ms. Colwell stated that there were no more comments for Storm Water Management and these same issues were discussed at the ConCorn meetings. Dave Rand of 280 Dale Street, stated that in one weeks time the beavers put back all the dams. Mr. Rand stated that he renewed his permit to take down 100 yards of the dam. Mr. Rand stated `-' that if the situation is not resolved we will be under water. Mr. Rowen stated that he understands and if the review is correct this development is not going to have any impact on the situation. Mr Takesian stated that we don't have a problem with the beavers like Mr. Rand we have a problem with thew ater coming onto astated to our property, Mr. Rowen stated that we are doing the best we can. r Mr. Takesianhat they will have a big problem with the impacts of the subdivision. llr. Rowen stated that he won't let this subdivision go forward if they are going to cause harm to the abutters, Mr. Rowen stated that the applicants will not make the problem worse. Mr. Pease stated that even the Town's Engineer stated that tate problem will not get worse. Mr. Rand asked why no oae from DPW or John Chessia has tonne out to see this problem with Bear Hill. Mr. ' Rowen suggested that they address their problems to Mr. Chessia. Ms. Colwell stated that they R.I-IESITI BEV. CORP. Fax:1-508-851-9366 Rpr Z;0 '98 10:42 P.04/08 should address their concems to the Planning Department and they we 'Mll forward there to Mr, Chessia. Continued until April i, 1998 The North Andover Plant -dna Board held a regular meeting on April 7, 1998 the following members were present, Richard Rowen, Chairma;-i, Alison Lescarbean, Vice Chairman, Tohr. Simons, Clerk, Joseph Mahoney, Richard Nardella & Alberto Angles, Associate Member. Kathleen. Bradley Colwell, Town Planner was also present. Ives. Colwell stated that thea are no remaining issues with this filing. tics. Colwell stated that we can't issue a decision until ZBA grants chem a variance, Or a motion by Mr, Nardella, seconde8 by -M. s. Lescarbeau, the Board voted unanimously to close the Public hearing and direct staff to draft a decision. The North Andover 'lanru z;g Board held a regular meeting on April 'L4, 199.4. x he following members were present: Richard Rowen, Ci;airman, Alison Lescarbeau; Vice Chairman, roseph Mahoney & Adberto Angles, Associate Member. Kathleen Bradley Colwell, Town Planner was - also present. On a motion by %, ,Lr, Angles, seconded by bfr. Nilahoney, the Board voted unanimously to approve. the draft decision as amended for Lot 1 Dale Street, Attached are the conditions Sincereiv, _ Richard S. Rowen, Chairman North Andover'Planning Board A. MESITI DEV. CORP. Fax:1-508-551-9366 Apr 30 '98 10:43 P. 05/03 F" Berrington place aSpecial Permit - Watershed Protection District The Planning Board makes the Following findings regarding the application of N. VG Realty Corporation. 11 Old Boston Road, Tewksbury, MA 01476, dated February 20.1998, regttestirig u Special Permit under Section 4.136 of the Zoning By -Law of the North Andover Zon' $v(aw to allow activities which cause a change iii topography and grade, vegetation removal, and suzface and subsurface discharge of storm water mroff within the Non Disturbance Zone and surface and sub- surface discharge of storm -water within the Non -DL --charge Zone of the Watershed Protection Distrct. '✓'ENDINGS OF FACT: Irl accordance with 4.136(4) the Plaxix;ing Board snakes the finding that the intent of the Bylaw, as well as its specitic criteria, are met. Specifically the Planning Board fids: !. That as a result of the proposed construction in conjunction with other uses nearby, there will not be any significant degradation of the quality or quantity of water in or entering Lake Cochichewick. The planning Board Erases its findings on the following facts: al All of the homes wi]1 be connected to the Town sewer system; b) storm water mitigation will catch and treat all storm water drainage; C) the limit of clearing is restricted to the minirnum necessary to construct the driveway; dl a construction phasing plan and emergency response plan are required. e) All of the proposed dwellings are located entirely outside of the non -disturbance zone. 2. - that there is no reasonable alternative location outside the Non -Discharge Buffer Zone for any r>sv discharge, structure or activity, associated with the proposed driveway ceetioc, as the lot is located within the Non -Discharge Zone. In accordance Mth Section ':0.31 of the North Andover Zoning Bylaw. the ,Piaiuung Board :Hakes the following findings: A. The specific site is an appropriate location for the proposed use as ah feasible stormwater and erosion controls :have been placed on the site, B. The use will not adversely affect the neighborhood as the lot is located in a resideutial zone; C. There will be no nuisance or serious uazard to vehicles or pedestrians; A.MESITI DEV.CORP. Fax:1-508-851-9366 Apr 30 '98 10:43 P.06/08 D. Adequate and appropriate facilities are provided for the proper operation of the proposed use; E. Tl.e Planning Board also makes a specific finding that the use is in hannony %xrth, the general purpose and intent of she North Andover Zoning Bylarv. Upon reaching the above findings, the Planr ing Board approves this Special Permit based upon the Following conditions: SPECIAL CONDITIONS: This decision must be died with the North Essex Registry of Deeds. The �o illowxng iufort-nation is included as part of this decision: a) Plans entitled: "Definitive Plan of land - Berington Place", tete sheets dated January 16, 1998 last revised 3!3/98. Prepared by Allen. & Major, Woburn. MA b;) .Reports entitled: i) "Statement of Envirenmentai and Community Impact", dated January 15, 998. iii "Water Quali v .and Best Mrtaagement Practices (BMP) Evaluation", Berrington Place, Dale Street, North Andover, Massachusetts, dated July 14_ 1997, revised October 8, 1991. C) The Town Planner shall approve any changes made to these plans. Any changes deemed substantiae by the Town Planner would require a public ?xearmi g and rnodification by the Planning Board ?. Prior to any work on site: aj Thr, limit of clearing line on each lot trust be marked in the field with, yellow caution tape and :Host be reviewed and approved by the Town. Ptax=, b) A per£onT=ce guarantee of ten thousand ($10,000) dollars in the form of a check made out to the Town of North Andover must be posted to insure that construction will take plate in accordance with the pians and the condi.ions of this decision and to ensure that the as -built plans will be submirted. C) All erosion con -a -al measures as shown on theplan must be in place and reviewed by the Town Planner. &) The site sball have received all necessary permts and approvals from the North 2 F, A. i 1ESI T I DEV. CMP Fax:1-508-8 1-c3366 Apr 30 '98 10:44 P. 07/08 Andover Conservation Cornmission, Board of Health, and the Defartmerat of Public Works and be in complianoc with the above pernnits and approvaia, I Prior to Verification of the FORM U (Building Permit fssuance): a) Prior to the verification of the FORM U for Lot ? H. MESITI DEV. CDR -P. Fax: 1-1-'4J8-851-9.366 Hpr 60 ' ats 10.41 P. 08/08 9. The Contractor shall contact Dig Satin at least 72 hours prior to Commencing excavation. 10, The provisions of this conditional approval shall apply to and be binding upon the appacaut, it's e=ioyees and U successors and assigns in interest or control. 11. This permit shall be deemed to have lapsed aria a two -(.2) year period from the date Cid 1x:on which the Special Perinit was granted unless substantial use or construction has commenced. CIC Director of Public works Building InspeLtar Health Agent Assescor Consexvntion AdLnininrator Police Officer Fire Chief Applicant Engineer rile Berington Estates - Watershed 4 r- w cr LEONARD KOPELMAN KoPELMAN AND PAIGE, P. C. DONALD G. PAIGE ELIZABETH A. LANE ATTORNEYS AT LAW JOYCE FRANK JOHN W. GIORGIO 31 ST. JAMES AVENUE BARBARA J. SAINT ANDRE JOEL B. BARD BOSTON, MASSACHUSETTS 02116.4102 EVERETT J. MARDER PATRICK J. COSTELLO JOSEPH L. TEHAN. JR BOSTON OFFICE ANNE -MARIE M. HYLAND (6171 666.0007 THERESA M. DOWDY FAX (617) 664.1726 WILLIAM HEWIG III NORTHAMPTON OFrICE DEBORAH A. ELIAtION 14131 666.6632 JEANNE S. MCKNIUHr JUDITH C. CUTLER WORCESTER OFFICE RICHARD BOWEN 1606) 762.0203 November 21, 1997 KATHLEEN M. O•DONNELL DAVID J. DONESKI SANDRA CHARTON ILANA M QUIRK JOHN RICHARD HUCKSAM. JR. SUSAN M. CALLAHAN BRIAN W. RILEY JOHN J. KENNEY. JR. ROBERT PATTEN MARY L. GIORGIO KATHLEEN E. COMNOLLV MICHELE E. RAN0AZ20 PETER J. FEUERBACH MARY JO HARRIS THOMAS W. MCENANEY JONATHAN M. SILVERSTEIN TIMOTHY J. ERVIN KATHARINE 1. GOREE CHRISTOPHER J. POLLART BY FACSiMILE - (978) 588-9542 FPivis. Kathleen Bradley Colwell P 1 if i 'I o"m Planner NOV 2 41987 • w� North Andover Town Hall 120 Main Street : A.NNING q,)nRn North Andover, MA 01845 Re: Berrington Estates Subdivision - Interpretation of Watershed Protection District Bylaw and related Questions Dear Ms. Colwell: You have requested an opinion regarding several issues raised by the applicant's attorney in regard to the proposed Berrington Estates subdivision. It is my understanding that, in particular, you seek clarification as to: 1) whether the Watershed Protection District Bylaw (the "Bylaw") affects this proposed subdivision; 2) whether the applicant, if required to obtain a variance, should obtain that variance from the Planning Board or from the Zoning Board of Appeals; and 3) what role the Conservation Commission will play with respect to this.proposed subdivision prucess. Briefly, in response to these questions, it is my opinion that: 1) the Watershed Protection District Bylaw will affect any lot(s) the applicant records after October 24, 1994, the effective . date of the Bylaw; 2) if the applicant is required to obtain a variance fiont any part ul• the Zoning Bylaw, including the Watershed Protection District Bylaw, the Zoning Board of Appeals will be the proper authority to issue such a variance; and 3) the Conservation Commission will be responsible for enforcing the Town's general (i.e., non-zoning)\k-etlands Bylaw and the State Wetlands Protection Act, but not the Watershed Protection District Bylaw which will be enforced by the Planning Board. PRINTED ON RECYCLED PAPER -. . - -" .�-. . ..-. .-... 11, ._ I a Tc . 7T 57Fi-7T -UPC LE KOPELMAN AND PAIGE, P.C. Ms. Kathleen Bradley Colwell Town Planner November 21, 1997 Page 2 Application of the October. 1994 Watershed Protection District Bylaw The facts as I understand them are as follows. The applicant seeks to subdivide a parcel of property which lie has owned since prior to the effective date of the Watershed Protection District Bylaw. However, before lie actually obtains subdivision approval for this property, he is proposing to build a road into the center of it; lie intends to later use this road as the access into the subdivision. This proposed road wil! undisputedly cress a non -disturbance buffer zone as defined in the Watershed Protection District Bylaw. He hopes that by building the road prior to completing the subdivision process, he will avoid the Watershed Protection District Bylaw requirements because the road will have been built un a lot which was in existence before October 24, 1994. In my opinion, the applicant's property will not be subject to the restrictions of the Watershed Protection District By-law until the applicant records or registers the property as consisting of rtrw hits. Thut is, in my opinion the Bylaw requirements only apply to those lots recorded or registered after October 24, 1994. Since the applicant's lot was in existence before that date, it is my opinion that it is not subject to the Bylaw. Furthermore. in my opinion, merely proposing to subdivide the lot does not trigger the restrictions under the Bylaw. In my opinion, the language of the Bylaw clearly states that it is applicable only to those lots recorded and rekistered after October 24, 1997. Therefore;, in my opinion, until the applicant records o re2isters new lots Of the subdivision, the Bylaw does not apply. As a result, whether the Bylaw will apply or not in this particular case depends largely on how the applicant chooses to proceed. it is possible that the applicant could complete the subdivision process, including construction of the road, without recording any of the lots, i.e., by covenanting to secure the construction of tate subdivision ruad, thereby avoiding the necessity of recording the lots until after construction is complete. Oil the other hand, it is possible he will record the lots prior to the completion of construction, (after posting a bond or dt:c to another circumstance), thereby triggering the Bylaw requirements, in my opinion. hi summary, it is my opinion that once the new lots arc recorded, the Bylaw will become applicable, but work performed un (lie existing, "unsubdivided" lot will not be subject to the Bylaw. Variance Procedures With respect to the second question, it is my opinion that if the applicant should require a variance liunl the provisions ofthe Watershed Protection District Bylaw, he must obtain such a variance from the Zoning Board of Appeals. In a letter dated July 23, 1997, the applicant's attorney seems to indicate lie believes the Planning Board would be the proper authority from which to obtain a variance. In my opinion, this position is mistaken. While it is true that pursuant to the Watershed Protection District Bylaw, the Planning Board is cinpowtred to hear and act on special peniiil requests, nothing alters the exclusive authority given to the 7.oning Board of Appeals to hear and decide variance requests. �'n -+ -7 �C-= o0o OnC - Aar •inn's .laA(1nuH UI-A0KI ATV': 7T 86-zr _Ugh KOPELMAN AND PAIGE, P.C. Ms. Kathleen Bradley Colwell Town Planner November 21, 1997 Page 3 Conservation Commission Role The third question appears to ask what role and authority the Conservation Commission has with respect to processing this subdivision request. In my opinion, the Conservation Commission will conduct a review which is separate from that of the Planning Board and Zoning Board of Appeals. The Conservation Commission will review the applicant's plan to ensure compliance with the Town's Wetlands Bylaw and State Wetlands Protection Act. The Planning Board (and Zoning Board of Appeals, if necessary) will review the pian with respect to the Watershed Protection District Bylaw and all other applicable zoning and subdivision provisions, rules and regulations. Should you have further questions regarding this matter, please do not hesitate to contact me. Very truly yours, Joel B. Bard JBBIKAHJatg cc: Town Manager Board of Selectmen 36918inan&9999 + f-%- A o00 one - nan -iuC)-)-AF)AODUW U-.-AON dZ£ = Z i 86 -Zi -u'eC Herbert P. Phillips, PC LAW OFFICES OF Michael A. Gerstein // (� p�(� fp�� Stuart M. Holber (Plumps, Cer il.[/ Z, Ho�Ger & Clown Russell S. Channen Jane M. Owens Triano Ronald N. Beauregard 25 Kenoza Avenue 0 Haverhill, MA 01830 Kevin P Rauseo TeL (978) 374-1131 /(800) 457.6912 ■ Fax: (978) 372.3086 OI Counsel: John T. Pollano Gerald M. Lewis October 20, 1997 William J. Scott Director of Community Development and Se! -.,ices 146 Main Street North Andover, MA 01345 Re: Berrington Estates Subdivision Dale and Appleton Streets North Andover, Massachusetts Dear Mr. Scott: I had previously written to you on July 23, 1997 stating the position of my client, MPG Realty Corp., and its desire to proceed with the above referenced subdivision. I am enclosing a further copy of such correspondence and am requesting again that Town Counsel issue an opinion, consistent with the position I have taken, that no further access points to the above property would be necessary. I would be more than happy to contact Town Counsel directly, although I am requesting that you proceed as quickly as possible to obtain such opinion so that my client can proceed in its endeavors. Vecy-truly yours, Michael A. Gerstein -� MAG/If :J cc: MPG Realty Corp. Elmer Pease Kathleen Bradley Colwell All attorneys admitted in Massachusetts. Holber, Beauregard and Rauseo admitted also in New Hampshire. Holber admitted also in Maine. Other office: 32 Saco Avenue, Po. Box w, Old Orchard, ME 04064 Reply to Haverhill office only Herbert P. Phillips. PC. (� /��rp►�(�/1LAAW�OFICCES OF p► n0I /%�/( ►�►�p Michael M. olbeGersrein T/4st N efsk / of / I ofU & l../ �l U n Stuart M. Holber Russell S. Channel Jane M. Owens Triano 25 Kenoza Avenue ■ Haverhill, MA 01830 ■ Tel. (508) 374.1131 ■ Fax (508) 372.3086 Ronald N. Beauregard Kevin P Rauseo Of Counsel: John T. Pollano Ju y 23, 1997 William J. Scott Director of Community Development and Services Town of North Andover 146 Main Street North Andover, MA 01845 Re: "Smith Property" Dale and Appleton Streets r� North Andover, Massachusetts rr Dear Mr. Scott: Please be informed this office represents MPG Realty Corp. relative to its desire to subdivide the P Y rP above property. I have received a copy of the letter of Kathleen Bradley Colwell, Town Planner, dated April 24, 1997 relative to her position that my client would need another access point to the `J property and, if not, would require a variance from the Zoning Board of Appeals. I have had occasion to review my client's file, the Town of North Andover Zoning Bylaws, the Wetlands Protection Bylaw, and the Wetlands Regulations for the Town of North Andover. I have also examined the title to the property, and I am of the belief that town counsel will concur that a n' variance will not be required. I am listing herewith my reasons and would request you submit this letter to Town counsel for his/her review and comments. It is my client's further hope and desire . to proceed with the subdivision in an expeditious manner, and I believe town counsel should be (� involved to address these concerns currently. Pursuant to the provisions of the Zoning By -Laws, and, in particular, Section 4.136 dealing with "Watershed Protection District", it is stated.under 4:1'36.2.f, "the provisions relating to the _ `" establishment of the Conservation Zone and the enlargement of the non -disturbance zone and the non -disturbance zones shall only apply to lots recorded and registered after the date of the enactment of this amendment." (October 24, 1994). Please be aware that the Smith Property in question was purchased March 25, 1960 as recorded at Book 912, Page 187 of the Essex North District Registry of Deeds, a copy of which deed I am enclosing herewith. It is certainly acknowledged that the North Andover Conservation Commission is empowered by �I the Wetlands Protection Bylaw to preserve and protect the wetland resource areas, and to adopt All attorneys admitted in Massachusetts. Holber and 8eauregard admitted also in New Hampshire. MI , L, Orders of Conditions which are necessary to regulate its responsibility. The Conservation Commission does have the authority to waive strict compliance with its regulations, when in its duld be consistent with the intent and purposes of the Bylaw. I certainly judgment, such action w acknowledge that my client, as an applicant, has the burden of proving that the grant of a waiver is consistent with the intent and purposes of the Bylaw. I wish to further acknowledge that the proposed subdivision and its current access points are in the non -disturbance buffer zone, although the following uses shall be allowed within such zone only by Special Permit, issued pursuant to Section 4 of the Watershed Protection District Bylaw. I . Any activities which cause a change in topography or grade; 2. Vegetation removal or cutting, other than in connection with agriculture uses or maintenance of a landscape area. 5. Any surface or subsurface discharge, including but not limited to storm water runoff, drainage of any roadway that is maintained by the Division of Public Works or any private association; outlets of all drainage swales; outlets of all detention ponds. You should be aware that the current roadway that is used and would be proposed to be used to access the property has a width of between thirty (30) and forty (40) feet. Correspondingly, the shoulders of the roadway are thirty eight (38) to fifty (50) feet. The slopes therein are currently eroding and partially treated, and the degradation of the adjoining or abutting wetlands are affected during heavy rains by the sediment from the soil in the slopes. Based upon such situation, the improvement to the roadway would greatly reduce the erosion and would serve to better direct and treat any storm water runoff. The addition of a paved roadway, which is further proposed as part of such subdivision, with a closed drainage system directed to a treatment swale, would further reduce TSS counts to DEP acceptable levels. From a further review of all documentation, I believe it is fairly clear that the Conservation Commission is allowed to permit the construction and maintenance of a new roadway or driveway, of minimum, legal and practicable width, acceptable to the Planning Board dimensional standards "where no alternate means of access from ari existing public or private way to an upland + area of the same ownership is available." As has been previously mentioned herein, the property has been held in the same owner since 1950, and thus was in existence prior to the effective date of October 24, 1994. When reviewing such matters in its entirety, and reviewing the burden of proof requirements, whereby an applicant must prove by a preponderance of the evidence that the work proposed in the application shall nop, ave an,unacceptable significant and/or cumulative affect upon the wetland values protected by this Bylaw, I would contend that a variance would not be required. Furthermore, since '& access road in existence would be acceptable as a single lot, it should not lose its applicability and availability for subdivision purposes. It is important to note in reviewing the Zoning Bylaws that "the Special Permit Granting Authority (SPGR) under this Bylaw shall be the Planning Board." Such Bylaw was clearly intended to allow the Planning Board and not -the Zoning Board of Appeals to make a i determination with regards to proposed subdivisions, and I would suggest that Town Counsel L review that in detail. r "A my review of the hat a division was formerly by I think it useful intog ineMar h,1957 for the site, tw with he plan brecord d at the Essex North District thethe Planng Boar Registry in Deeds, on April 2, 1957, listed as Plan # 3442. The access points remain the same as proposed in the current plan, which clearly evidences the intent to use such access points as a means of entering the property for subdivision purposes. While I must clearly acknowledge that the Planning Board is not required to accept a new subdivision based upon one that e, xi a number of years ago. I think it is important in making a determination of the use of the site that the clear intent and purposes of such subdivision was to use the existing access points. The owner who originally intended to proceed with the subdivision was Lantern Corporation which, I understand, involves the Smith Family who are the current owners of the property, with the previous subdivision formerly known as "Appleton Estates" It is my sole intent and desire to expedite the subdivision process and allow for uses that are clearly spelled out and allowed under the rules and regulations of the Town of North Andover. MPG Realty Corp. is desirous of completing the plans for submittal of its Notice of Intent, and, as well, prepare a definitive set of plans for submittal to the Planning Board, and I would appreciate vour having town counsel formulate an opinion, in light of the within submittal. Very truly yours, ichael A. Gerstein MAG/if cc: MPG Realty Corp. Elmer Pease DALE STREET - COMPLIANCE BRIEF & FINDING I have carefully reviewed the Town of North Andover's Zoning Bylaws -Reprinted -- 1996 and their Wetlands Protection Bylaw and Wetlands Regulations. 1 researched those sections of the Bylaws that pertain to the Buffer Zone distances and requirements and their interaction with our proposed development. I reviewed several key sections that have, or could have some bearing on the roadway that is proposed for the 7 lot residential subdivision. The following excerpts were taken from the Bylaws and are the ones that are at the heart of this brief. I have also included a copy of the deed to the property furnished by the attorney who completed the title abstract. This deed shows that the property was a lot of record as of March 25, 1960. This date, is of course, critical in the determination of whether or not certain provisions of the Regulations and Bylaws affect this property. After careful review of the Bylaws and Regulations, excerpted below and highlighted, it is my opinion that the roadway we propose in its current location does not require the submittal or finding of the Zoning Board of Appeals. Further, it is my opinion, that the Conservation Commission has the authority and right to grant a waiver to allow the roadway pursuant to Section I.E. Waivers From Regulations -Wetlands Regulations, and the Planning Board to grant a Special Permit pursuant to the finding that the property is a lot created prior to October 24, 1994 and pursuant to Section 4.136.3.c.i and 4.136.c.ii of the Zoning Bylaws -Watershed Protection District, Town of North Andover Zoning Bylaw -Reprinted 1996. Pursuant to Section 4.136.1.d of the Watershed Protection District, the Special Permit Granting Authority (SPGA) shall be the Planning Board. The Conservation Commission has the jurisdiction and authority pursuant to Section 178.2 and 178.6 of the Wetlands Bylaw and Section I.E of the Wetlands Regulations. This finding supports the fact that the Planning Board and Conservation ir, Commission have the right and the authority to review and. grant approval on this subdivision without having to- acquire a variance from the Zoning Board of Appeals. WETLANDS PROTECTION BYLAW Section 178.1 Purpose. The purpose of this Bylaw is to preserve and protect the wetland resource areas (as specified in Section 2) and buffer zones of the Town of North Andover by regulations of, and control of, activities (more particularly described in Section 2 below) deemed by the Conservation Commission (the "Commission") to have significant or cumulatively detrimental effect upon the following interests and values, including but not limited to: public or private water supply; groundwater; the prevention t and control of flooding, erosion, sedimentation, storm damage, and/or pollution; protection of fisheries, wildlife, wildlife habitat, and recreation., F d L7 lav Section 178 .9 Rules and Regulations. The Commission shall be empowered to adopt Rules and Regulations to govern its affairs, including, but not limited to, fees, ultants, and such other information which it deems necessary to definitions, use of cons discharge its responsibility. After due notice and public hearing, the Commission may promulgate such rules and regulations to effectuate the purposes of this Bylaw, by a majority of the duly appointed members. l _ WETLANDS REGULATIONS Section I.B Purpose.The purpose of the North Andover Wetlands Protection Bylaw (hereafter referred to as the "Bylaw") is clearly stated in the Bylaw. These Regulations are promulgated to ensure fairness, to create a uniformity of process and to clarify and define the provisions to the Bylaw, administered by the North Andover Conservation Commission, hereafter call the "Commission". Wetlands contribute to a number of public interests and are therefore protected by the Bylaw. The Bylaw identifies three additional public interests not recognized by the Act. These are: "prevention of erosion and sedimentation", "wildlife" and "recreation". Any permit issued under the Bylaw and Regulations must therefore contribute to these public interests. Section LE Waivers from Regulations. Strict compliance with these Regulations may be waived when, in the judgment of the Commission, such action is consistent with the intent and purpose of the Bylaws and these Regulations. the applicant shall have the t burden ofP roof that the granting of the waiver is consistent with the intent and purpose of ,. the Bylaws and these Regulations. The Commission shall act on the request and shall provide to the applicant, either by certified mail or hand delivery, its written decision. See Appendix 2 for a Waiver Request Form. Section II Definitions. 2. The term "alter" shall include without limitation, the following actions when undertaken in areas subject to the Bylaw: a) changing of pre-existing drainage-characteristi,cs, sedimentation patterns, flow patterns or flood retention characteristics; -0 b) placement of fill, excavation or regrading; C) destruction of plant life, including cutting and removing of trees or shrubs; d) changing water temperature, biochemical oxygen demand or other physical or chemical characteristics of water; n e) any activities, changes or work which pollute or cause displacement of any body L� of water or groundwater; f) any activities, changes or work which cause alteration of wildlife habitat. 3 The term "burden of proof" means the applicant shall have the burden of proving by a preponderance of credible evidence that the work proposer/ in the application shall not have an unacceptable significant antUor cumulative effect upon the wetland values protected by this Bylaw. Failure to provide adequate evidence that the work proposed in the application shall not have an unacceptable significant and/or cumulative effect upon the wetland values protected by this Bylaw shall be sufficient cause for the Commission to deny a permit or grant a permit with conditions. Section VI Performance Standards and Supplement Documentation A. Flood Standards. B. Wildlife Habitat C. Stormwater Management D. Erosion Control E. Wetland Replacement or Restoration E.3. The Commission may permit the construction and maintenance of a new roadway or driveway of minimum legal and practical width acceptable to Planning Board Dimensional standards, where no alternative means of access from an existing public or private way to an upland area of the same owner is available. Replication of altered wetlands resources may be required by the Commission to minimize adverse impacts and to protect the interests identified in the Bylaw. WATERSHED PROTECTION DISTRICT Section 4.136 2.f The provisions relating to the establishment of the Conservation Zone and the enlargement of the Non -Disturbance Zones shall only apply to lots of recorded or registered after the date of the enactment of this amendment (October 24, 1994). (1994/1 STM). Table 1 - Lots created after October 24, 1994 Conservation From Annual High Water Mark of Lake Cochichewick out to From Edge of All Wetland Resource Areas Within the Watershed District out to 150' 75' Non - Disturbance 250' 150' Non - Discharge 400' X11 Table 2 -,Lots created on or prior to October 24, 1994 Non - From Annual High Wates- Mark of Lake Cochichewick out to From Edge of All Wetland Resource Areas Within the Watershed District out to C. Non -Disturbance Buffer Zone Disturbance 250' [11141 Non - Discharge 325' 325' There shall exist a Non -Disturbance Buffer Zone within the Watershed Protection District which shall consist of all land areas located between one hundred fifty ............. i. Allowed Uses: All of the Allowed Uses listed in Section 3(a)i of this Watershed Protection District Bylaw are allowed in the Non -Disturbance Zone except as noted below. ii. Uses Allowed by Special Permit: The following uses shall be allowed within the Non -Disturbance Buffer Zone only by Special Permit issued pursuant to Section 4 of this Watershed Protection District Bylaw. (1) Any activities which cause a change In topography or grade. (2) Vegetation removal or cutting, other than in connection with agriculture uses or maintenance of a landscape area. (5) Any surface or sub -surface discharge, including but not limited to, stormwater runoff; drainage of any roadway that is maintained by the Division of Public Works or any private association; outlets of all drainage swales; outlets of all detention ponds. The current roadway that is used to access the property has a width of between 30- 40 feet. The shoulders of the roadway are 38-50+ feet. The slopes are currently eroding and partially treated. The degradation of the adjoining or abutting wetlands are affected during heavy rains by the sediment from the soil on the slopes. The improvement to the roadway would greatly reduce the erosion, and better channel and treat stormwater runoff. The addition of a paved roadway, with a closed drainage system directed to a treatment swale would reduce TSS counts to DEP acceptable levels. d:i .'.i�� � 1 tV