HomeMy WebLinkAboutMiscellaneous - Exception (153)JACQUELINE L. ALLEN
OF COUNSEL
E-MAIL: jla@ufb.com
URBELIS, FIELDSTEEL & BAILIN, LLP
155 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110-1727
Telephone 617-338-2200
Telecopier 617-338-0122
July 18, 2000
Raymond A. Vivenzio, Esq.
North Andover Zoning Board of Appeals
27 Charles Street
North Andover, MA 01845
RE: Litha Flynn, Trustee of Long Pasture Realty Trust
Vs: Board of Appeals of the Town of North Andover
Essex Superior Court Civil Action No. 98-1913-B
Dear Mr. Vivenzio:
Andover Office
Telephone 978-475-4552
This case. has been dismissed as are result of the Plaintiff's failure to
respond" o.discovery requests filed by the Plisinskis as Interveners. The entire
case has been dismissed, so there will be no trial on August 4, 2000. A copy of
the Order of Dismissal is enclosed.
The Plaintiff could file a Motion to Vacate the Dismissal at any time
within the next year, as long as she presented sufficient reasons to the Court for
her failure to file discovery responses on time.
I will advise if there are any further developments in this matter.
JLA:Iss
Enclosure
cc: Zoning Board of Appeals.
Board of Selectmen
-Terri Ackerman,
Tliomas Urbelis, Esq.:.
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Very truly yours,
cquel' L. Allen
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JUL-18-2000 14:41
ESSEX, SS.
HATEM and MAHONEY 978 682 1712 P.02/03
COMMONWEALTH OF MASSACHUSETTS
LITHA FLYNN, TRUSTEE OF
LONG PASTURE REALTY TRUST
Vs.
WILLIAM J. SULLI[ AN, WALTER F. SOULE,
ROBERT FORD, ELLEN MCINTYRE and
GEORGE EARLEY as they are members of the
Board of Appeals of the Town of North Andover
SUPERIOR COURT
C.A. 98-1913B
DISMISSAL
The above entitled matter came on before the Court, Merrick J. presiding, upon the
motion of the interveners, Paul J. Plisinski and Margaret D. Plisinski, for entry of final judgment'
of dismissal as to.all defendants, said motion being unopposed and the Court having allowed said
motion,
It is hereby ORDERED and AJDUDGED:
That the complaint of the plaintiff, Litha Flynn, Trustee of Long Pasture Realty
Trust, be and hereby is DISMISSED as to the above named defendants without
costs.
Dated at 'Newburyport, Massachusetts this "" day of June, 2000.
r
Assistant Clerk
THOMAS J. URBELIS
E-MAIL: tju@ufb.com
URBELIS, FIELDSTEEL & BAILIN, LLP
155 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110-1727
Telephone 617-338-2200
Telecopier 617-338-0122
July 11, 2000
Terri Ackerman
Acting Town Manager
North Andover Town Offices
120 Main Street
North Andover, MA 01845
RE: Litha Flynn, Trustee of Long Pasture Realty Trust
Vs: Board of Appeals of the Town of North Andover
Essex Superior Court Civil Action No. 98-1913-B
Dear Terri:
Enclosed is a copy of the Dismissal dated June 30, 2000.
Very truly yours,
Lof
Thomas J. U lis
TJU:Iss
Enclosure
cc: rBd of Selectmen
d of Appeals
Joyce Bradshaw
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Andover Office
Telephone 978-475-4552
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS.
LITHA FLYNN, TRUSTEE OF
LONG PASTURE REALTY TRUST
Vs.
WILLIAM J. SULLIVAN, WALTER F. SOULE,
ROBERT FORD, ELLEN McINTYRE and
GEORGE EARLEY as they are members of the
Board of Appeals of the Town of North Andover
SUPERIOR COURT
C.A. 98-1913B
DISMISSAL
The above entitled matter came on before the Court, Merrick J. presiding, upon the
motion of the interveners, Paul J. Plisinski and Margaret D. Plisinski, for entry of final judgment
of dismissal as to all defendants, said motion being unopposed and the Court having allowed said
motion,
It is hereby ORDERED and AJDUDGED:
That the complaint of the plaintiff, Litha Flynn, Trustee of Long Pasture Realty
Trust, be and hereby is DISMISSED as to the above named defendants without
costs.
Dated at. Newburyport, Massachusetts this 30`h day of June, 2000.
Assistant Clerk ��
f,
zN�
SOYC ECi_i',,fE
T01 N CLERK
THE TRIAL COURT OF NORTHANGOY`R
THE OCT gzB Pp 198
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO.
Litha Flynn, Trustee of
Long Pasture Realty Trust,
Plaintiff
V.
William J. Sullivan, Walter F. Soule)
Robert Ford, Ellen McIntyre and ) COMPLAINT
George Earley as they are )
members of the Board of Appeals)
of the Town of North Andover, )
Defendants )
1. This is an appeal from a decision of the Board of Appeals of the
Town of North Andover pursuant to M.G.L.A. Chapter 40A, Section 17, Said
decision is dated in September, 1998 and was filed with the Clerk of the Town of
NAorth Andover on September 16, 1998, a copy of which is attached as Exhibit
2. The Plaintiff is a Massachusetts Trust under a Declaration of Trust
dated September 2, 1981 and recorded in the North Essex Registry of Deeds
Book 1551, Page 84 and having a principal mailing address of 8200 Lakeshore
Drive, Hupoluxo, Florida..
3. The Defendants are members of the Board of Appeals of the Town
of North Andover.
4. The Plaintiff is the owner of real estate on Forest Street, North
Andover, Essex County, Massachusetts which directly abuts the real estate of
Paul and Margaret Plisinski at 505 Forest Street, North Andover, petitioners in
the matter which gives rise to this litigation.
5. The said petitioners filed on application for a variance from the
requirements of Section 7, Paragraph 7.2 and Table 2 of the Zoning Bylaw of the
said Town of North Andover as it pertains to frontage.
6. After public hearing, the Board of Appeals decided in favor of
granting the application of the petitions.
7. The written decision of the Board of Appeals states, in part, .that
..all abutters were notified by regular mail..."
8. M.G. L.A. Chapter 40A Section 10 states in part 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 by-law..."
COUNT ONE
9. The Plaintiff, Litha Flynn, Trustee of Long Pasture Realty Trust,
repeats and reavers the allegations of paragraph 1 through.7 as if expressly
rewritten and set forth herein.
10. The Defendant did not notify the Plaintiff about the date and time
scheduled for the public hearing concerning the petition herein contradictory to
its misstated decision (See Exhibit B attached).
COUNT TWO
11. The Plaintiff, Litha Flynn, Trustee of Long Pasture Realty Trust,.
repeats and reavers the allegations of paragraph 1 through 10 as if expressly
rewritten and set forth herein.
12. The decision of the Defendant should it stand, effectively leaves
the land of the Plaintiff valueless creating a substantial hardship on the Plaintiff.
13. The result of the decision of the Defendant is a substantial
detriment to the public good and nullifies and substantially derogates the intent
and purpose of the said by-law.
14. The decision of the Defendant is erroneous and legally untenable
and thus exceeds the authority of the said Board of Appeals.
Wherefore, the Plaintiff demands:
A. That the Court enter a judgment to annul the decision of the Board
of Appeals since the Plaintiff was not afforded its right to due process pursuant
to Count One;
B. That the Court enters a judgment to annul the decision of the
Board of Appeals since the said Board exceeded its authority pursuant to Count
Two; and
C. That the Court enter such further order and/or judgment as it
deems just.
Litha Flynn, Trustee
of Long Pasture Realty Trust,
Plaintiff,
by her attorney
Peter T. Slipp, quire
126A Pleasant Valley Street
Methuen, MA 01844
(978) 685-1800
BBO No. 466680
Certificate of Service
I, Peter T. Slipp, Attorney for the Plaintiff, Litha Flynn, Trustee of Long
Pasture Realty Trust, do hereby certify that I did serve Notice of the Plaintiffs
Complaint in the matter of the Board of Appeals Notice of Decision of Petition
Number 024-98 by delivering a copy of said Complaint to the Office of the Town
Clerk of the Town of North Andover and the Civil Action Cover Sheet this 6th day
of October, 1998.
October 6, 1998
Peter T. Slipp, Esq re
Any appeal shall be filed
within '42 days after the
date of filing of this notice
in the office of the Town Clerk.
NAME Paul & Margaret PI
ADDRESS: 505 Forest St
North Andover, MA 01845
i 0
41
ss''�GHUstit
TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
NOTICE OF DECISION
PROPERTY: 505 Forest St
Exhibit "A"
SOYCE ER i A
TOWN CL; -PX
NORTH ANOOVE1,
SEP 16 2 47 F� '98 ,
DATE. 919/98
PETITION: 02498
HEARING: 7114/98 & 8111198 &918198
The Board of Appeals held a regular meeting on Tuesday evening the 8"' of "September, 1998, upon the application
Of Paul & Margaret Plisinski, 505 Forest St, North Andover, MA requesting a Variance from the requirements
of Section 7, paragraph 7.2, of Table 2, within the R-1 Zoning District, for street frontage.
The following members were present: William J. Sullivan, Walter F. Soule, Robert Ford, Ellen McIntyre, and George
Earley.
The hearing was advertised in the Lawrence Tribune on 6130/98 & 7/7/98 and all abutters were notified by regular
mail.
Upon a motion made by Walter F. Soule and seconded by Robert Ford, the Board of Appeals unanimously voted to
GRANT a Variance of 61.24 feet of frontage on Forest Street for Lot #1 as shown on proposed subdivision sketch
by Applewcod Survey Company, dated June 3, 1998 for the following:
1. That the total existing lot of 5.15 acres is shaped oddly in that frontage on Forest Street equals 288.76 feet and
that rear lot line equals 607.51 feet
2. That a wetland existing of 72,862 sq. ft. (1.67 acres) is across the two lots.
3. The issuing of this variance is not more detrimental than presently existing.
4. That only one single family residence may be built in the uplands area of Lot #2.
5. That any access to Lot #2, as shown on proposed subdivision sketch by Appiewcod Survey Company dated
June 3, 1998, to utilize upland access to this Lot #2 shall be over adjacent parcel of land Lot #1 by easement,
covenent, or common driveway, to avoid filling of wetlands, as shown on above reference drawing. (Reference
Michael Heward's, North Andover Conservation Administrator, memo to Zoning Board of Appeals dated July 1,
1998).
Voting in favor. William J. Sullivan, Waiter F. Soule, Robert Ford, Ellen McIntyre, George Earley.
The petitioner has satisfied the provision of Section 10, paragraph 10.4 of the Zoning Bylaw and that the granting of
these variances will not adversely affect the neighborhood or derogate from the intent and purpose of the Zoning
Bylaw.
NOTE: The granting of the Variance andfor Special Permit as requested by the applicant does not necessarily ensure the
granting of a Building permit as the appilcant must abide by all applicable local, state and federal and building codes and
regulations, prior to the issuance of a iuljlding permit as requested by the Building Commission.
/decec:S
BOARD OF APPEALS
William J. Sullivan, Chairman
Zoning Scam of Appeais
ATTEES1=
A True Co y
Tf"17
Exhibit "B"
TOWN OF NORTH ANDOVER
:'LIST OF PARTIES OF INTEREST: PAGE OF
SUBJECT PROPERTY
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'
Trial Court of Massachusetts L
DOCKET NUMBER
CIVIL ACTION COVER SHEET
SUPERIOR COURT DEPARTMENT
�Jjp
Division
PLAINTIFFS) Litha Flynn, Trustee of
DEFENDANT(S) William J. Sullivan, et als
Long Pasture Realty Trust
as they are members of the
North Andover Board of Appeals.
ATTORNEY(S) FIRM NAME, ADDRESS AND TEL.)
ATTORNEY(S) (if known)
Peter T. Slipp, Esquire
126A Pleasant Valley Street
Methuen, MA 01844 (978) 685-1800
Board of Bar Overseers # (Required) 4 6 6 6 8 0
ORIGIN CODE AND TRACK DESIGNATION
Place an ® in one box only:
® 1. F01 Original Complaint
0 4. F04 District Ct. Appeal c231, s. 97 (X)
0 2. F02 Removal to Sup. Ct. c 231, s. 104 (F)
El 5. F05 Reactivated after Rescript; Relief from
.3. F03 Retransfer to Sup. Ct. c231, s. 102C (X)
judgmentiorder (Mass. R Civ. P. 60 (X)
El 6. E10 Summary process appeal (X)
TYPE OF ACTION AND TRACK DESIGNATION (See Reverse Side)
CODE NO. TYPE OF ACTION (specify) TRACK IS THIS A JURY CASE?
CO2 Zoning Appeal (A ❑ Yes ® No
1. PLEASE GIVE A CONCISE STATEMENT OF THE FACTS: (Required in ALL Types of Actions)
Plaintiff alleges that the North Andover Board of Appeals
failed to afford her due process and exceeded its authority
in granting a petition for variance.
2. IN A CONTRACT ACTION (CODE A) OR A TORT ACTION (CODE B) STATE, WITH PARTICULARITY,
MONEY DAMAGES WHICH WOULD WARRANT A REASONABLE LIKELIHOOD THAT RECOVERY
WOULD EXCEED $25,000:
N/A
3. PLEASE IDENTIFY, BY CASE NUMBER, NAME AND DIVISION, ANY RELATED ACTION PENDING
IN THE SUPERIOR COURT DEPARTMENT.
None
SIGNATURE 0 TTo PLAINTIFF DATE
10/6/98
DISPOSITION RECEIVED
A. Judgment Entered B. No Judgment Entered
BY:
0 1. Before jury trial or non -jury hearing C 6. Transferred to District
DATE
2. During jury trial or non -jury hearing Court ander G.L . c.231,
DISPOSITION ENTERED
Q 3. After jury verdict s.102G.
El 4. After court finding Disposition Date BY:
11 5. After post trial motion DATE:
mtc 005.8/88
URBELIS, FIELDSTEEL & BAILIN, LLP
155 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110-1727
Telephone 617-338-2200
Telecopier 617-338-0122
October 15, 1998
Clerk's Office
Essex Superior Court
34 Federal Street
Salem, MA 01970
Andover Office
26 Chestnut Street
Andover, MA 01810-3600
Telephone 978-475-4552
Please Send Correspondence
To Boston Address
Re: Litha Flynn, Trustee of Long Pasture Realty Trust
Vs: Board of Appeals of the Town of North. Andover
Essex Superior Court Civil Action No. 98-1913-B
Dear Sir or Madam:
Enclosed for filing please find Notice of Appearance of Thomas J. Urbelis.
Thank you for your time and cooperation.
Very truly yours,
Thomas J.r elis "
TJU.jeh
Enclosure
cc: Peter T. Slipp, Esquire
North Andover Board of Appeals
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see
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS.
LITHA FLYNN, TRUSTEE OF LONG PASTURE
REALTY TRUST
Plaintiff,
V.
WILLIAM J. SULLIVAN, WALTER F. SOULE,
ROBERT FORD, ELLEN MCINTYRE, AND
GEORGE EARLEY, AS THEY ARE MEMBERS OF
THE BOARD OF APPEALS OF THE TOWN OF
NORTH ANDOVER,
Defendants
............................................................................................................................
SUPERIOR. COURT DE
OF THE TRIAL COURT
CIVIL ACTION NO. 98-1913-13
NOTICE OF APPEARANCE OF THOMAS J.
URBELIS
Please enter my appearance as counsel for the defendants William J. Sullivan, Walter F.
Soule, Robert Ford, Elen McIntyre and George Earley, as they are Members of the Board of
Appeals of the Town of North Andover.
Thomas -J. Urb ' , BBO #506560
URBELIS, FIEL TEEL & BAILIN, LLP
155 Federal Street
Boston, Massachusetts 02110
Dated: October 15, 1998 Telephoiie: (617) 338-2200
Certificate of Service
I, Thomas J. Urbelis, do hereby certify that on October 15, 1998, I served the above
Notice of Appearance on the parties in interest by causing a copy of same to be mailed, postage
prepaid, to Peter T. Slipp, Esquire, 126A Pleasant Valley Street, Methuen, MA 01844.
Signed under the penalties of perjury.
Thomas J. Urb i
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