HomeMy WebLinkAboutMiscellaneous - Lot 1 Dale Street (2)j �v�°��✓S - --
Elmer A. Pease, 11 CPM, EA-,. - Senior Associate'
PD Ass'odates, LLC
Real Estate Consultants
247 Londonderry Turnpike, Auburn, NH 03032
Tel: 603-641-8200 Fax: 603-641-8882
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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 1:PM.
By Order of the Board of Appeals,
William J. Sullivan, Chairman
Published in the Eagle Tribune on 3/31/98 & 4/7/98
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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 376, 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 1: PM.
By Order of the Board of Appeals,
William J. Sullivan, Chairman
Published in the Eagle Tribune on 3/31/98 & 4/7/98
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Received by Town Clerk:
RECE1 D
JOYCE BRADSHAW
TOWN CLERK
NORTH ANDOVER
MAP, 18 10 30 AM '08
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, uA 01876 Tel. No. 978-851-9395
1.
2.
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.
a)
. b)
Premises affected are land and building(s)
numbered Street.
Premises affected are property with frontage on the
North ( A 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' squa-re feet
and frontage of 50' & feet.
5 of 8
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 o_ -I" Purchase 3-25-1960 Previous Own . erLantern Corporation
i. if applicant is not owner, check his/her interesti
in the premises:
X_ Prospective Purchaser Lessee — Other
2. Letter of authorization for variance/ Special Permit
reauired.
4 . Size of proposed building: N/A
front; feet deep;
Height stories; feet.
a ) Acoroximate 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 iDrevious appeal, -under zoning, on these
premises? No . - I f so, when?
6. Descriotion of relief souFht on this petition To build a roadway --with al-
requirecr details within the 75 conservation zone, if appilcanie. (See 4-136-2(f)
7. Deed recorded in the Registry o'L'Deeds in Book 912 Page 187 9 a��gs 1&:
Land Court Certificate No. . Book Page _.
The principal points upon which i base my application are as
follows: (Tust, be stated �n. detail).
(1) Property has existing access driveways with culverts, one is currently being used as
(2) ons are in close oroximitv to Jurisdictional wetlands. acces,,
(3) means of access are available.
4 211 --Da I e St. lots abutting this site have driveways that fall within the conservation
Grantinq relief would al�ow cess to ro t not othe
to �w
. 1��. �r
�pplicant feels that relie�f, is not necEssR f�la�'e* setbacks.
agree to aWr '��suaat '1'2nie 2. ,
egy tine --iiiing ree, a ertising in newspaper, and,
er
incidental n ses*
,i�--,�.ture of Petitioner(s)
NEWW'.
;L'1
DESCRIPTION OF VARIANCE REQUESTED
ZONING DISTRICT: R-1 (Residential
Required Setback Existing Setback Relief
or Area or Area Requested
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
7 of 8
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 ofl,305,493 square feet
and frontage of 50, & �l eet .
idb
5
,.R`V LI1'1'`i
JOYCE BRAC' �iAW
8
TOWN CLERK
NORTH ANDOVER
Received
by Town Clerk: MAY 13 1 44 PM '98
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 varjj& b Foq the requirements of Section 4
Paragraph 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 ofl,305,493 square feet
and frontage of 50, & �l eet .
idb
5
of
8
ol�
3. Ownership:
a) Name and address of owner (if joint ownership, give all
names) :
R. Ashton & Gwendolyn C. Smith;C/0 Trustee Geoffrey Smith
15 Driftwood Drive, North Bradford, CT 06471
Date of Purchase 3-25-1960 Previous Owner Lantern Corpora ion
b) 1. If apoiicant is not owner, check his/her interest
in the premises.:
X Prospective Purchaser Lessee Other
2. Letter of authorization for variance/Special Permit
required.
g. Size of proposed building: N/A front; feet deep;
Height N A 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 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
follows: (must be stated in detail)
See attached Addendum 11A"
I agree to pay the filing fee, advertising in newspaper, and
incidental expenses*,)
ure of -i-)etitioner(s)
P=7r nc n-1 n � �
')a
ZONING DISTRICT:
DESCRIPTION OF VARIANCE REQUESTED
R-1
Recruired Setback
or Area
Conservation Zone 75'
Lot Dimension
Area
Varies
Street Frontage
50' & 186+/- feet
Front Setback
N/A
Side Setback(s)
N/A
Rear Setback
N/A
Existing Setback
or Area
None
Special Permit Request: Not Applicable
7 of 8
Relief
Requested
Pursuant to Plan
31
Rev nF ni c�
l
NORTN ti
4 s
.-t
�9SSACHU5��
TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
1
RLi l —1
JOYCE ERAG�'+AW
TOWN GLc.RK
NORTH ANDOVER
Arlt Z 1 12 of ?� `fid
Any appeal shall be filed
date of filing of this Notice
within (20) 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.
BOARD OF APPEALS
Raymond VKtenzio, acting Chairman
-Walter Soule, Zoning Board of Appeals
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Copyright (C) 1998, Earttrvisias, fnc.
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JAW OFFICES OF
Herbert P. Phillips- PC Gersten & Chmien
Michael A. T/I - ] (', Gefst *1, llo��StuartM.Holber ! !/l`JJ
Russell S. channen
Jane M. ovens Triano
Ronald N. Beauregard 25 Kenoza Avenue ■ Haverhill, MA 0183
Kevin P. Rauseo Tel. (978) 374-1131 1(800) 457-6912 ■Fax: (978) 372-3086
of Counsel:
John T. Pollano
Gerald M. Lewis
October 20, 1997
William J. Scott Ser
� DevelOpr*�Prt and j.- s
Director Of Commurit
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. sel
ain that
wn
IamenS
closin a further copy of such correspondence and am requesrther access poin s t Che n
- issue an opinion, consistent with the position I have taken, that no
above property would be necessary.
n ha to contact Town Counsel directly, although I am requesting that you
I would be more than happy proceed in its
proceed as quickly as possible to obtain such opinion so that my client can
endeavors.
Very -t -uly Yours,
Michael A. Gerstein
MAG/If
cc: MPG Realty Corp.
Elmer Pease
Kathleen Bradley Colwell °
All attorneys admitted P
mitted in Massachusetts. Hampshire.
Holber, Beaur9and and Rauseo admitted also in New
Holber admitted also in Maine. ," n, r nrchard. ME 04064 Reply to Have office only
Herbert P Phillips. PC.
Michael A. Gerstein
Stuart M. Holber
Russell S. Channen
Jane M oVuens Triano
Ronald N. Beauregard
Kevin P. Rauseo
of Counsel:
John T. Pollano
LAW OFFICES OF
Th4s, Gersten, 11offia & CIM01
_ 25 Kenoza Avenue s 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, M.A. 01845
Re: "Smith Property"
Dale and Appleton Streets
North Andover, Massachusetts
Dear Mr. Scott:
�1
•' 1
`+23 1997
Ju y ,
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
cl 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 award that
the Snuth of the Essexperty North
in
question was purchased March 25, 1960 as recorded at Book 912, Page
District Registry of Deeds, a copy of which deed I am enclosing herewith.
It is certainly acknowledged that the North And 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.
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 (3 8) 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 ad 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 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 wcuid suggest that Town Counsel
review that in detail.
y roved by
that a subdivision was fojrrierl app
it useful to note, from my review of the title,
think
in March, 1957 for the site, with the plan recorded at the Ee1nain he S�enacst
the Planning Board
of Deeds, on Aril 2, 1957, listed as Plan # 3442. The access points j PO
as a
Registry which clean evidences the intent to use such access p
propose in the current plan, y , existed a
P property for subdivision purposes. While I must clearly acknowlde that
means of entering the prop ye that based upon on
no Board is not required to accept a new subdivision nation of the use of the site that
the Planning p a determination
number of years ago. I think it is im ortant in making
intent and purposes of such subdivision was to use the existing access rtion whichhI owner
the clear int with the
who originally intended to proceed withVtrihoe su heicurrent owners of the roperty,
understand, involves the Smith Fancily Teton Estates"
previous subdivision formerly known as "App
sole intent and desire to expedite the subdivision process and Town of North Andover.
w for uses that are
It is my lations of the T
clearly spelled out and allowed under the rules and regu as
MPG Realty Corp. is desirous of completing the plans for subrnittal of its Noticeng Board, and o Intent,
well, prepare a definitive set of pians for submittal to h o the within ubmr it al-
vour having town counsel formulate an opinion, in lig
cc: MPG Realty Corp.
Elmer Pease
Very truly yours,
ichae A. Gerstein
DALE STREET - COMPLIANCE BRIEF & FINDING
L have carefully reviewed the Town of North Andoverning IBylaw researched those
1996 and their Wetlands Protection Bylaw and Wetlands Regulations.
sections of the Bylaws that pertainirements and
to the Buffer Zone distances and requ
their interaction with our proposed development.
coulae someearing on the
1 reviewed several key sections that have, or
bdivisiolnv The following excerpts
roadway that is proposed for the 7 lot residential su
were taken from the Bylaws and are the ones that are at the heart of this brief.
torney
1 have also included a copy of the deed tWsh hatothertroperty was a lot ofrecordas
who completed the title abstract. This deed sho P
of March 25, 1960. This date, is of course, critical in etdeterm
property.ination of whether or not
certain provisions of the Regulations and Bylaws t
After careful review of the Bylaws and Regulations, excerpted urrenbelow
and
n does not
highlighted, it is my opinion that the roadway we propose i c Further, it is d
require the submittal or finding of the Zoning Board of Appeals
opinion, that the Conservation Commission has the authority
Re and rigulatht to gran
ra landsaiver
to allow the roadway pursuant to Section I.E. Waivers F g
Regulations, and the Planning Board to grant a Special Permit
to Seot on 4113 6 3 that
the property is a lot created prior to October 24, 1994 and pursuant
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 A 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 11of the Wetlands Regulation
s.
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
eals.
subdivision without having to- acquire a variance from the Zoning Board of App
WETLANDS PROTECTION BYLAW
The purpose of this Bylaw is to preserve and protect
Section 178 1 Purpose. _ of
the wetland resource areas (as specified in Section 2) and buffer e one f thelarly described bed in
To
North Andover by regulations of, and control of, activities ( the "Commission") to have
Section 2 below) deemed by the Conservation Commission
significant or cumulatively detrimental effect upon the olloi ng un interests and clue on
including but not limited to: public or private watersupply; g
i ven
and control of flooding, erosion, sedimentation, storm damage, and/or pollution;
protection of fisheries, wildlife, wildlife habitat, and recreation.
[I
Section 178 9Rules and Regulations. The Commission shall be empowered 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 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
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)
b)
C)
d)
e)
f)
changing of pre-existing drainage=gharacteristics, sedimentation patterns, flow
patterns or flood retention characteristics;
placement of fill, excavation or regrading;
destruction of plant life, including cutting and removing of trees or shrubs;
changing water temperature, biochemical oxygen demand or other physical or
chemical characteristics of water;
any activities, changes or work which pollute or cause displacement of any body
of water or groundwater;
any activities, changes or work which cause alteration of wildlife habitat.
== 3 The term burden of proof" means the applicant shall have the burden o proving
::•. by a preponderance of credible evidence that the work proposed in the application shall
ificant aneVor cumulative effect upon the wetland values
not have an unacceptable sign
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- Non-
, _ Disturbance Discharge
From Annual High
Water Mark of -
Lake Cochichewick
out to 150' 250' 400'
From Edge of All
Wetland Resource
Areas Within the
Watershed District
out to 75' 150' 400'
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
C. 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 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.
..
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CASE #
TOWN OF NORTH ANDOVER
ZONING BOARD OF ADJUSTMENT
OWNER'S AFFIDAVIT
I, the undersigned, owner of property located at Dale Street and identified asMan 37B -
Lot #1
do hereby authorize MPG Real Co oration 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 on121ans 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 S ecial Permit
application and accompanAng 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
nezba.doc
IDT #1
IDT #4
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LOT #7
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DJ2Pna2= PLAY OF LAAW
TAr ALP NO. 89B. PARCJM NO. I
NORTH ANDCV= WASSACKUSMW
70 BS MWIV AS
BZIUWGrON PLACE
SCAM W Now AM
mmw Dr x10 D. irsomot ps 0mv= ar
PRmum Br
Allen & Major
Associates, Inc.
CM ENCRIEM LAW SUR%SYM
400 VMW 0AWW PAW S= 5000 WMP"L MA MOM
(W) 035 -OM FAX (617) 935-250!1
247 LONDONDERRY rJF&Vft AIJBLNtPL NH 03039
(603) 541-4300 M- (403) "I -am
InjuWav rinL, I DM B
SITE PLAN
m
THE ZONING BYLAW
TOWN OF NORTH ANDOVER
1972
REPRINTED IN 1997
TaQR��
Q== LAKE r'
'QA= CCCHIC HEWICK
- TED AY
U 5
1
14
1
2.
d. The sale of products raised as a result of the above uses on the subject land.
Day Care Center by Special Permit (1985/23)
4.136 Watershed Protection District
Purpose
a. The Watershed Protection District is herein established as an overlay district and shall
be superimposed on the other districts established by this Zoning Bylaw. The
requirements enumerated hereafter for this Watershed Protection District shall be in
addition to, rather than in place of, the requirements of such other districts.
b. The Watershed Protection District surrounds Lake Cochichewick, the Town's sole
source of public drinking water supply. Regulations within the District are intended to
preserve the purity of the ground water, the lake, and its tributaries; to maintain the
ground water table; and to maintain the filtration and purification functions of the land;
while conserving the natural environment; and protecting the public health, safety and
welfare.
C. The Lake Cochichewick Watershed Plan (August 1987), prepared by I.E.P., Inc., for
the Town of North Andover, is a comprehensive study of the lake and its watershed.
The Watershed Protection District is a portion of the I.E.P. study's recommended
management plan. Copies of the I.E.P. report are available in the Planning Board
Office.
d. The Special Permit Granting Authority (SPGA) under this Bylaw shall be the Planning
Board.
Boundaries and Zones
a. The boundaries of the Watershed Protection District are shown on the Zoning Map as
set forth on a plan entitled "Subdrainage Areas", Lake Cochichewick Watershed Plan
(August 1987), Attachment 1, dated August 1985, prepared by I.E.P.. Inc. for the
Town of North Andover. This plan is hereby made a part of this Bylaw and is on file in
the Office of the Town Clerk.
b. The Watershed Protection District shall be divided into four zcnes. The uses and
building requirements for each zone will vary according to its proximity to the Lake
and wetland resource areas. The Zones are as follows:
i. General: There shall exist a General Zone within the Watershed Protection
District which shall consist of all land located beyond four hundred (400) feet
53
horizontally from the annual mean high water mark of Lake Cochichewick and
all wetland resource areas (as defined in M.G.L. Chapter 131, Section 40, and
the Town Wetland Bylaw) located within the Watershed.
ii. Non -Discharge: There shall exist a Non -Discharge Buffer Zone within the
Watershed Protection District which shall consist of all land areas located
between two hundred fifty (250) feet and four hundred (400) feet horizontally
from the annual mean high water mark of Lake Cochichewick and between one
hundred fifty (150) feet and four hundred (400) feet horizontally from the edge
of all wetland resource areas (as defined in M.G.L. Chapter 131, Section 40,
and the Town Wetland Bylaw) located within the Watershed.
iii. Non -Disturbance: 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 (150) feet and two hundred fifty (250) feet
horizontally from the annual mean high water mark of Lake Cochichewick, and
between seventy five (75) feet and one hundred fifty (150) feet horizontally
from the edge of all wetland resource areas (as defined in M.G.L. Chapter 131,
Section 40, and the Town Wetland Bylaw) located within the Watershed.
iv. Conservation: There shall exist a Conservation Zone within the Watershed
Protection District which shall consist of all land areas located within one
hundred fifty (150) feet horizontally from the annual mean high water mark of
Lake Cochichewick, and within seventy five (75) feet horizontally from the
edge of all wetland resource areas (as defined in M.G.L. Chapter 131, Section
40, and the Town Wetland Bylaw) located within the Watershed.
C. In the event that the SPGA determines, on the basis of credible evidence before it, that
there exists a significant doubt or dispute concerning the proper location of boundaries
of the Watershed Protection District on any individual lot or lots, the SPGA shall, at
the request of the owner of such lot or lots, engage a Registered Professional Engineer
to advise it in determining such boundaries. The owner making such request shall
reimburse the SPGA for the cost of such Engineer. Upon completion of the Engineer's
report to the SPGA, the SPGA shall hold a hearing to make a final determination of
such boundaries. At such hearing, such report shall be deemed evidence sufficient to
establish the location of the boundary unless rebutted by credible evidence to the
contrary.
d. When the Watershed Protection District boundary divides a lot of record as of June 28,
1978, in one ownership, that portion of the lot within the Watershed Protection District
must comply with this Bylaw. Where the premises are partially outside of the
54
a
Watershed Protection District, potential pollution sources such as on-site waste
disposal systems, shall be located outside of the District to the extent feasible.
e. The provisions relating to the Conservation Zone shall not apply to any activities
undertaken by the Division of Public Works.
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 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 150' 250'
From Edge of All
Wetland Resource
Areas Within the
Watershed District
out to 75' 150'
Table 2 - Lots created on or prior to October 24, 1994
From Annual High
Water Mark of
Lake Cochichewick
out to
From Edge of All
Wetland Resource
Areas Within the
Non- Disturbance
250'
55
Non- Discharge
Non- Discharge
325'
M
Watershed District 325'
out to 100'
3. -Uses and Bun¢ Requirements
a, General Zone
There shall exist a General Zone within the Watershed Protection District which shall h silt of
er
all land located beyond four hundred (4tesoueet � ezareasl(as definedy ftom the �M.G.L. Chapter 131,
mark of Lake Cochichev�nck and all wetland
Section 40, and the Town Wetland Bylaw) located within the Watershed.
i Allowed Uses: The following uses shall be allowed in the General Zone of the
Watershed Protection District as itemized below.
(1) All permitted uses allowed in Section 4.121 "Permitted Uses Residence
1, 2, and 3 District of the Zoning Bylaw.
(2) All uses associated with municipal water supply/treatment and public
sewer provided by the Town of North Andover.
(3) The Division of Public Works may conduct routine maintenance of any
existing use of property, including the maintenance and improvements
of existing roadways and ,drainage systems.
(4) Maintenance of fire access lanes by the Fire Department.
(5) All agricultural uses, providing that such uses exercise Best
Management Practices and be undertaken in such a manner as to
prevent erosion and siltation of adjacent water bodies and wetlands.
Uses Allowed b S ectal Permit: The following uses may be allowed
of a Special
n antro r
General Zone of the Waterrshed Po te41on of District
Watershed Protection District
Permit issued pursuant
Bylaw:
(1) Golf courses, public or private withBest Management Practices.
(2) Any other use not provided for elsewhere in this Section.
(3) A commercial kitchen on public sewer.
56
T Associates, LLC Telephone #:(603)641-8200
?al Estate Consultants p
Facsimile #:(603)641-8882
14 Lonclonderry Turnpike, Auburn, NH 03032
March 10, 1998
Zoning Board of Appeals
Town of North Andover
146 Main Street
North Andover, MA 01845
RE: Application for Variance -Dale Street -Map 37B -Lots 1
Via Facsimile: 1-978-688-9556
Dear Mr. Chairman:
Pursuant to our meeting on the 25`h 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,
me�r�lea e, II �CPEA
Owner's Representative
cc: Michael Gerstein, Esq.
Kenneth Grandstaff
Kathleen Bradley Colwell
nazbaw[hd.doc
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W ' ` '.ZZ
L414EK.. ;l)Itl'UiiAl : uh
a eIari,araltanduly to:stliaheJ o1e)sr this laws of Conunonwealtr of Huasaehurtet.l:
awwd having to .rad plats at Lvto,.is( it Eta it"i; Lun
Middlesex
Co.mty Mantissas. tar amsiduai•.st pa4
gram is R- Ashton Shit and :;wendolta r. Smith, huabond And wife its
Yenanta )ty the Entit•:ry
of Korth Al\duver, tantx County, XA6/actltlaett'r, ••,%A astlasla raamru:s
thtvliii jft Iwo cortAiti noretla of land afLUated qff Unic SUrect
said wicrtit .:ngvvtr, bounded and described as follow:.
Pitt El. NO. 1 ftcginuinl; AL the Northwcntzrly earner of lAr,d nba
or foraerly ilillncr, Lpeing ehowli to Luc No. 17 A otr•'rian ct
Applecon r,sLates, :ialt Street. North ..nd(:ver, taaas. uwnter, LancArt,
Corp. t;:lglncer, Ralph D. srasseur, Nardi: 27, 0:7" rald plat%
being recorded it: ttte•Aarth Uistrioc oZ i•sVex Ker,letry i,: %keds as
Plan NO. 3442; thence running Nortimriy by 2 stone wall And l.,ad
of Cadogan seven hundred tarty -.our and %:a/IGJ test- more ur• Leas to
an iron pipe at land of Leland ns shu•-tit on sAiii plan; t:iettce, running
"sterLy by a. atGne wall forming, rite Slorl.1terly boune.Ary of Lot No. 2U
Oil said plan and by n titch forinins the WortherLy boundary of Lot..
Ao. .21 and 22 on said pLan• thence cc:ttinuing by Land o:' said Leland
' u •shown on "Plar. of Land in Xorch Andover IIAAA. nwwled l,y uaniel
! E. Hogan Jr., 1e1.t•unr7 2r1, 19!;6` recorded �h the North, UtKL.rict: of
F.asox tcagistry o! flet -da as rlan iib. 320c, w total dfacanec of 2.02S
feet -more or Lcss.ro rite 2oristsr ui is atone wall ac ln"d niattbert
Miller as shown on eaid Laxt• tIALud p1An; thenen. rurninn And runnini,
�SoutherLy and by said land of .4.1ler in pnrt Uy a scone wall., rhrev.
i2 hundred n7nct•y-one and 46,iltlt: lett to '.ilL•ht•r 1,.nd %.f Itobert miller
as shown on eaid last hanged titan; ehrence riaoning Vvsrcr:y by Like
1e.;. Nortaterly boundary of land ut Hobert t•.i Li .•r , chi : i c Hiller, White
and «inNfiC1Q e.6 shown un caiwl LAnt a:m:Cd i•lan, ive nandt til;:uy
and hl/Lou tact to a atune wull ac la"6 at i:al;tnkrn on said plan;
taancc turni.n;; and runnin r Narchc•rly by rrte acune %.tnll said :mud of
Shnborn, one hundred trlcltty-ni.nc and _,u/L,.k, I'cel' '.a ti,a Loin;%cnuLLrly
cnrncr of said Sinborr. lana, .-;c aHnw;t ern aa -.Li n:un; t.itocc turning
and runnir.E Weaccr1y by the t(orct%ct•i; hounds:ry of l+nd of yanborn and
Peters as sno•.m or, said ular., cw:, hundred cLyaty chree feet. :c• all
iron �r
Lpe at the wort:rweazcriy corner � Law' of said teterA; L.vne—c
Cttrnlfttt Arid rjnnin;; .:oucherly ::y Like deaZcriy It f line osaid i aterr. :at-
-AG
Lit,•Aa sltuwrtt on plan rocorded N.:. 3442 rc:err.d to auovc. A distance. of
four Imadred Lulrty-cine and i, 'ILU fns t i.,. .)„): Jtrce: Lib —0-1, u%
sai.e last named Ulan; l..ancc rut;l,Inl, mi'•out ler.cu; l� ;•y a stitna well':
anti nale Jtrcct as shount on aai.d 1:.:1 ;.awed I+la•i :n cot:rste
measuring fort/-ecveo m..I 'v/l;u 1-ecc, fLitr a„i! u')/I.N: weet.
thirty six Asia Su/L.)U f'ct'. nnrl fist/ f(:.;t treuretivtly tu..:. atunc
bound as shown cli said titan; L.mncc tit:nine• and in a f•cntra-
Gortharly dittcriun t.y the curve cf a hran.a¢d road As s!rownt u.' CAW
yinr. Lt two euucsea, ntctrsurittl, :.weuc,-siz an.: 4.),floo feet e..1: :ru•ce
hundred thirty slid Ao/L:v tccc to a sten, pound ir. ow 1'nrtttcast rl7
corner of land of ;.ntJrc:;.:t, as shotr% on acid ioit named plan; rI'viluc
tut•ctin-1 and runr.in„ .le-tccrl;i I)y tsie P.ereherly hnutl? of l::nd of
Andresen, Virkham and }•oma tbi•rc lilt
at.d f rCy-Linc lieu to :aur.
Lit'' acid.grantee mrcrkd r..A. _:with on est:: .>lun t'terr_t tcrnir.; and
runnin;• l:erthurly by land of acid grAticee nLn:-c,-fivt tccc mora
Lir less to the Nartnenst:crly c0^:cr of #laid A. Smith :na•f; tne-ICE”
furrlim: and ruunin.i ',icatcrly D7 Land :it !:mt :1. a, chest oil ,Aid Plan
woo :,undred eiynty-e1�ht ani :. /l..0 ice% to a p_Lut; U.•rtr. :urk.tnI
and ruanir.;l in A Southwest:rly directitn lie/ n curve :covin: n :ndiL:r
O: tllk'et hundred seventy iter, a dii:ranee :wv hunareC
alit, v2/lw,u Leet c., a (.rill iolc tit a aruue well at vale icr3et ss
shown ort said plan: chance turnir.g and ruuninb ttcrcnw_scct'1y t7
a atone waLi artC.Dale Street t•i;;Iity-f:ve feet more i.r- less L.. s scone
ltaund In Che 313uthc.Asterly onrner of ;..tit Np. I7 A as a.w`. u:, raid
Bien; taence in n genetl
ral orthanste-dircacion iy 6ncfu
y 1othen6L(;r1y
boundury of Loc L- A in taros courees na:ururit.E Litirty-ont ant 4;/1.W
Lret, nine Ly -four rd:.A ..i/ll•U Cuct not one nuncred t-irt; LwO and
;D/.LU feet Lt, Lhe Nurtheasturly cot•ner oL sul4 L -CL 1'A 43 sno.,ii o:.
said plan; tl.etlee turning and tuoining hurtrtut,atcrly oy Lot 17 A un
said Itlatl three Ist:rtdred six srd 49/1W reet to the point a: begrlltting.
9 ? rontoltring 50 acres 9or•t• lir less.
i
YA4C£L II Being aho.nt as Lot tie. lei un tae Saueaerly aide of pale
•.
treat [i said Horth Andover clt Plan entitled "Plan of Land in North
1 8 8 Andovert Hasa, owned by 04niel L. 11aflan Jr. 'rebruar; 9, 1956. Ssitl
plan being recorded in said rel(larry at Flat Ito. 31:16, Said premises
,
heing more carticularly bounoed nate. described as t„llowot
a!i'•," NW'rIthAST.T.I.Y two hundred fifty rect Tore lir le" try tale Street!
30UTIMASTFI:LY one. hundred sixty eight cert -tore or Leas by Luc
1•:u. 1.5 on sai.d plan atoi
1 sow ritwSrUtLY two ltuntiredtwenty was feet mono or Less by land Itow
or tvrmerty Ni•J Enlr. and Power Company ns shown on
said !slam.
Cotttainine 11,5JU aq:lar•e fear more cr :cola according to said plan.
t
being Part of :ht pt•emiras conveyed to the ;r&.t*.tor Corporation
by decd of Uaniel t:. l.ogsa Jr. at six dated April 16, W56, recorded
in Laid Itcgietri. tioesl J31 J+atis 3:;0.
+ Said nretaises are conveyed subject to a •taking by the "a"
County Cotanlsttiuners for the rclocativn of lisle street, recorded in
ea:d Reg>.rtry. Jook :;g2, ra�te 435, tit sc: far as :he same affect• Llsc
within described pretaisee.
E g , and •>, t•eb eonye •its • to the t•nutaea of
14canin and intctsdin y y s d
s
ALL the Land in North Andover :low standing o: record in the name if
t Lantern Corisorari..n wlteeiter or rice the vete+c is tnciudod utttti.- the
boundaries, ,.f Lite above described pareela.
Ssid or•tselass are conveyed .object ro tiro tsxea r„r the current
f
year which me f,rantcur herein aasuste an:1 at;ret to +ay.
1
i h<• 7r;znter curpurstlon :!erre+! th convey. to :he ;aid 3r nolle•: any
and 411 rtyhts ;o eanaons-i%J::h it m,y ivve oa a jesilt of the Taking
<
j referred to abeve-
ll. S, Pt:lr•rnl J\tR-rile Slnmpol `•1•-...rl•t^.ars I••••1 1.c n: 3tanr+t r
i
in t.:+1 la,..<. .�
111 Stalls ..f •S.' _.1 :..'tl
.—.. ._�
of."tNcd r: 1:1 L�It.:.•ticJ V.1 l.Yi �:,..:.• :•,i 1:..:..::. V.1 .r:J�
i••il t'uua•gt :r.:.r.latcr. t.
ht rntlltrag m4trrat, uw said L!.'":J1:17 �G:t�ult,r;t;N r
.1
- has Caused its Corporate atoll to be herrn, sa+Fxed and them prM6L:e u be s.tned. eckno-looted asd J
.r
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RE0'[jVED
- TBRADSHAW
OWN CLERK
H.QRTH ANDOVER
Received by Town Clerk:
MAP, 18 10 37 AM
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
Paragraph 136.2 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.
b) Premises affected are property with frontage on the
North ( )Q 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 suuare feet
and frontage of 50' & feet . +
5 of 8
DESCRIPTION OF VARIANCE REQUESTED
ZONING DISTRICT: 'R-1 (Residential
Required Setback Existing Setback Relief
or Area or Area Requested
. 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
7 of 8
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 werc made known to Town Counsel. The provisions relating to the
traverse such currently existing driveway to provide the needed access. Such unique condition is
J 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.
CON C .T S1ON
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
Aats.ae to MFI.2C�NCf�xN filo and C Lrtiricxtioa or Actio. of Plawtim4
an Dni
•rLss,ro Subdlcision Pl= ecti.tled: Berrington Place
ero
Inc, Al)_en & Major ,A,ssociatea,
datod January 15� —� L'996
to the
The Harth Ar+d�'rr Plx in8 Board has yo.ad to APPAOv'� said P=an* subject
f ,lowing candltions:
Z_ TUat the record owners of the subjtct 1a-:3 forthwith fmcute and r -carts
st nrt7.ag Bei `.h t� laud", or other4ze praside 3ecuzztp for the cen-
g-cavrsarru
jtruct:.On of vn-*a and Me insta iaLion ser�ca, �rithisi d31d Ano-
d:Lyd,aion, all as prodded by G.L. a. !tl
2. That a.].l such aonst;vctien an4 i.astallations�hs11 .21 'A..1 re3Pects
Lhin Hoard_
coo=oto+ to the goversl7-ag testes aiui rasttla � 'Haas o:
9- That, as required by the -North Nudaver Board of Realty in ite rtiport to
this Board,, po bttillUlg or other strut*_ure shall be built ar placad upoa iAss
as shown as said P1aA T -"boll- the mor
190 .
cQRaeat of said Board aC lieait2l-
4. other condltic=:
M
Ta :ha oveaL Lhcto no wppral shall Isar• beets takra Q,-om_ Saida ra4s1 xitbdn
Hca_+ -d xill .ort!ith
tvantp dr�� trav tris cia�a, tt� 1tol�ovCapon sadd al-iA-
:hereatter eadc:ae its larza.1 aFPr
tF t * ti • • • • • • • �, ♦ .� r �h e 4 • r tl • M u M ♦ ♦ r • Jr ♦ r • • •
/�7�._�
P L4C=inJao.xrd
-.•-
Richard S. ROWen
8T/TT 8O: TT 86, OS �cTU 99S'6-TSS-80S-T:Xe� d'dC�� 'r13Q IlIS3ld'd
04/29/1998 16:02
6036418882
Acrvington place Definifive :Subdivision
Conditional Approval
PD ASSOCIATES
PA(i 02
The PWu2{ing (bard hmin APPROVES the Definitive Subdivision for P seven (7) Int subdivision
known as Berrington Estates Place. MPG Realty Corporation, 11 Old Boston Road. Tewkstxn % MA
01876. submitted flus application on January 16, 1998. The arca affected is locatcd off of DaleStrect
in the R- I Zoning District.
The Planning Board mattes the following findings as required by the Rulcs and Regulations Goveming
the Subdivision of Land:
A. The Definitive Plan. dated Jamiary 16, 1998. Last revised on 3/3!98. includes all ofIhe inli)rniation
indicated in Section 3 ofthe Rules and Regulations concerning the procedure for the sul,"ission of
plans.
8. The Definitive Plan adhem to all of the design start lards as indicatod in Sectn)n 7 of tlic Kulcs arid
Regulations except as noted in Condition 17 Waiver,,
C. The Definitive Plan is in conformance with the purpose and intent ofthe Subdivision Control Law.
D. The Definitive Plan complies with all of t:`te review comments submitted by various town
departments in order to comply with state law, towm by-laws and insure the public health. satCty,
and welfare of the town.
Finally, the Planning Gourd .Binds that the Definitive Subdivision complies with'I'uwn Hylaw
requirements so long as the tollowirtg conditions are complied with:
1) >Envimnmental Monitor: The applicant shall designate an independent environmental monitor
who shag be chosen in comsultant 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 oftial. The Environmental Monitor shall make weekly inspections of the project and
file monthly reports to the Pisnning Board throughout the duration of the project. The inonthly
nepons shall deWi area of non-compliance, if any aril actions taken to rewtve these issues.
2) prior to eadorsernent of the plans by the Planning Board the applicmtnt shall adhere to the
following:
a) A Development Schedule must he submitted for signature by the Planniing Board. which
contour to both Sections 4.2, and Section 8.7 of the North Andover 7.rmning Bylaw. Thr
schedule must show building permit e5gibWty by quarter for all lots.
b) A, Site Opening Bond in the amount of five thousind (S5,000) dollar: to he held by the Town
of North Andover. The Site Opening Bond snap be in the form of check made out to the
1
£o - d Zb96 Beg SOS ' A0d -tup7 AOAOpUV y1. -.ION dEO = 10 Q6 -6Z --+dV
04/29/1998 16:02 6036418882 PD ASSOCIATES PAGE 03
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-oNiting.
clearing, erosion control and performance of any other condition contained herch 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 bottling considerations. be
released in full. or partially retained in accordance with the recommendation of the Planning
Staff as directed by a vote of the NAPB.
c) The final subdivision plans must be reviewed and approved by the outside consul -wit. the
Plautt*V Ueparnmrit aid A.P.W.
d) A covenant (FORM 1) securing all lots within the subdhision for the construction of ways aund
rtntnicipai services must be sub[ttitted to the Plauuting Roaud. Said lots tray he rete mwd firm the
covenant upon posting Ofsecurity as requested in Condition 4(d).
e) The applicant rrntst submit to the Town Planner a FORM M for all utilities and easements
placed on the subdivision.
P, All application fires must be paid in bill and verified by the Town Planner.
g) The applicant must meet with the Town Planner in order to ensurer that the pleas confonn to
the Board's decision. A Rall set of final plans reflecting the changes outlined above, must be
submitted io the Town Planner for review endorsement by the Marming Board. wiftl ninety
(90) days of filing the deciaon with the Town Clerk.
h) 'The Subdivision Decision for this project must appear on the rr iars.
i) Alt documents shall be prepared at the expense of the applicant, as required by the Planning
Board Rules a:nd Regulations Gove rtmg the Subdivision of Land.
3) Prior to ANY WORK on the site,
a) Once the subdivision plana have been recorded, the appfieamt mast Apply for and receive
a vaMance for work within the 73• Conservation Zone under the North Andover
Watershed Protection District Zoning Bylaw. No work will be stllowed on the site until
the variance has been issued, if the request for a variance is denied, this subdivision will
N in violation of the North Andover Zoning RvFaw and the approval will he deemed
resdided.
b) Yellow "Ca+uticn" ►Ape must be placed along the limit ofckaring and gmding as shown on the
approved plan The Planning Staff must be contacted prior u) my cutting and or clearing on
site.
tFO' d zV96 Beg nos -Asa -ue07 .aanopu w 4,*-AaN dvo = Lo e6 -6z -"dd
04/29/1998 16:02 6036418882 PD ASSOCIATES PAGE 04
e) All erosion control measures as shown on the plan and outlined in the erasion control plan
must be in place and reviewed by the Town Planner.
4l Prior to any lots being released from the statutory covenants -
a) Three (3) complete copies of the endorsed and recorded subdivision plans and one ( I ) certified
copy of the following documents: recorded subdivision approval. recorded Covenant ( FORM
1), recorded Growth Managernent Development Schedule. and recorded FORM til rn ist be
submitted to the Town Planner as proof of recording.
b) All site erosion control measums required to protect off site properties from the effects ofwork
on the lot proposed to be released must be in place. The "town Planning Staff shall determine
whether the applicant hes satisfied the requirements of this provision prior to each lot release
and shall report to the Planning Board prior to a vete to release said lot_
c) The applicant must submit a lot release FORM 1 to the Planning Board for signature.
d) A Performance .Security in em amount to be determined b'y the Planning Board upon the
recommendation of the Department of Public Works, shall be posted :o ensure completio110 f
the work in accordance with the Plans approved as pan of this conditional approval. The bond
must be in the form of 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. Iterm covered I y the Bond
may include. but shall riot be limited to -
i) as-buih drawings
ui) sewer's and utilities
iii) roadway construction and maintenance
iv) lot and site erosion control
V) site screening and Areet trees
vi) drainage facilities
vii) site restoration
viii)final site cleanup
A Performance Security may be established for each phase individually.
5) Prior to it FORM U verifleatlom for an individual IoL the following infbrination is requirml ln, the
PlAn ning Department:
a) A "One Way" sign must he placed on Dae Street visible from tho now subdivision roadwav in
a location approved by the DPW.
h) The Planning Board will review the status of the Subdivision and vote to verify FORM i
3
901d ZV96 889 abs -nap -woo .aanopUV 4:1,. ON af0= tO 85-6Z--AdV
04/29/1998 16:02 6036418882 PD ASSOCIATES PAGE 05
applications as appropriate and in conformance with this decision.
t:1 An as -built plan must be submitted to the Division orPubbc Works for review and approval
prior to acceptance of the sewer appurtenances br use.
dl If a sidewalk is to he constructed in front of the lot. then such sideAaik must Lx- graded and
staked at a minimum.
e) The applicant must submit a certified copy of the recorded FORM 1 referred to in Condition
4(c) above.
f) A plot plan for the lot in question must be submitted. which includes all of the Ibllowing:
i) location of the structure,
it) location.of the driveways,
W) location of the septic systems if applicable,
iv) location of all water and sewer lines.
v) location of wetlands arxi any site improvements required under a NACC order of
oondition,
"i) any grading called for on the lot,
viii) all Muired zoning setbacks.
viii) Location of any drainage. utility and other easements.
g) All appropriate erosion control measures for the lot shall be in place. Thr Planning Fk)ard or
StWT shall make final determination of appropriate rneastrres.
t) Lot numbers, visible &orn tim roadways must be posted on all lots.
6) Prior to a Certlfleate of occupancy being requested for an individual kit, the follow4 shall be
required:
a) Sprinkler systerns must be installed in all hotnes per NAFD requiremerss.
b) The roadway must be eon;structed to at least binder coat of pavement to property access the lot
in question Prior to construction of the binder coat, the applicant shall ensure thnt all requirml
hvection and testing of water, sewer, and drainage facilities has been completed. The
applicw t must submit to the Town Planner an interim as -L -t ilt, certified by a professional
engineer. verifying that all utilities have t>tn installed in acvordance with the pians and profile
sheet.
c) All nesaessary permits and approvals for the k;t in que!aion shalt be obtained fmsn the North
Andover Board of Health, and Conservation Commission.
4
90-d z*96 999 90S 'naO "WO:) - GD^OPub 4-::�-+aN dSO: 10 96 -6d --4¢b
04/29/1998 16:02 6036418882 PD ASSOCIATES PAGE 06
d) Permanent house numbers must be posted on dwellings and be visible from the read.
0 There shall be no driveways placed Wicre stone bound tnonumcnts andlor catch trasins are to
beset. It vhall be the developer's responsibility to anure the proper Nx=ent of the driveways
regardless of whether individual lots are sold. The Planning Board rcquirts any driveway to he
moved at the owner's expense if such driveway is at a catch basin or stone bound position.
7) Prior to the final relean of swurity retained for the site by the Towm the foUu Aing stall hu
Contpbted by the applicart:
a) An as-buih plan and profile of the site shall be submitted to the UP W and Planning Department
for review and approval.
b) The applicant shall petition Town Mceting for public acceptance of the street. Prior to
s"bmi"ing 8 warrant for such petition the applicant shall review the subdivision and all
remaining work with the Town Planner and Departme it of Public Works. The Planning Board
shall hold a portion of the subdivision bond for continued maintenance and operaticirs until
such titne as Town Meeting has accepted (or rejectted 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.
8) The Applicant shall ensure that all Planning. Conservation (;ommissiom Board of Health and
DivisionofPublic Works requirements arc satisfied and fiat construction was in strict compliance
with all approved pinna and conditions.
9) The Town Planner will review any signs utilized for this project. The applkant must obtain u sign
pemtit as required by Section 6 of the Bylaw. The Planning Board shall approve any entrance
structures. The applicant must nymove any lighting used for the entrance siRoti prior to acceptance
of the subdivision.
10) The applicant shall ad ere to the f0901ving 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 confornmrice Mth the Town Bvlaws and State
Statute and only with the review and approval ofthe Fire Department and Conservation
Comnission.
t t) There shall be no burying or dumping ofconstruction 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 )..ours prior to currunencing any cxtavation.
5
40-d EV96 1389 SOS '/god 'woo-AO^Opuy 4Z -+0N d90:r0 So -6Z -"CIV
04/29/1998 16:02 6036418882 PD ASSOCIATES PAGE 07
14) Gas. Telephone, Cable. and Electric utilities shall be installed as specified by the respective utility
companies.
l S) Any action by a Town Board, Commission, or Department which requires changes in the roadway
alignment, placement of any easemorns or utilities, dra6age facilities, grading or no cut lines. may
be subject to modification by the Planning Hoard.
16) The following waivers from the Rules and Regulations Gown* the Subdivision ut'Land. Nurtlt
Andover. Massachusetts, revised February, 1989 have been granted by the Planning Board:
a) Section 7(A)(4) Dead -End Streets: The Planning Board herein Slants a waiver of
approxirrLztely 100' for the strett length_ The applicant lus demonstrated that the strrct Icrgth
will hatr no adverse impact on the Watershed Protection Mstrict.
b) Section 7(D)(2) Sidewalks: The sidewalks will abut the curb per requirement of UPS`'.
e) Section 7(F.)(1) Street Trees: The street trees will be placed outside ofthe ROW per
requirement of DPW.
d) These waivers have been granted in an effort to minimize the amc)un: of cutting aid 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
�Ck-%L? . 7Q� (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 Boan! has not
granted an cxtension by the above referenced date, this definitive subdivWon approval will he
deertted to have lapsed.
17) This Definitive Subdivision Plan approval is based upon the f'olk)King information which is
incorporated into this decision by reference:
a) Plans entitled: "Definiti%c Plan of Land - Berington Place", ten sheets dated January
16-1999 last revised 3/3198. Prepared by Alkn & Major, Woburn, MA
b) Reports entitled:
i) "Statement of Environmental and Community Impact dated January 15,
1998.
if) "Water Quality and Best Managernerr Practices (BMP) Fvaluadun",
Berrington Place, Dale Street, North Andover, Massachusetts, dated July 14,
6
190, d zV96 eeg 909 • Aad • WOO .AVAOPUV y-4."ON a4o : t:o g6 _5Z --db
04/29/1998 16:02 6036418882 PD ASSOCIATES PAGE 08
1997, revised October 8. 1997.
Conservation Adn- nr&rator
Director of Public Warics
Heath Adrninistrator
Building Inspector
Police Chief
Firs Chief
Assessor
Applicant
Engineer
File
Berrington Estate -9 - subdivision
60"d zV98 B69 809
7
'^SCI -woo-is^opuW 4-4."ON d80: TO 86-6Z-- av
04/29/1998 16:02 6036418882 PD ASSOCIATES PAGE 09
Notiea to APPt3CAYr/*L.,,4N CUMX dnd Cartigicatioo or Actio of Planni,ad scats!
04 Dd.:" ive Subdiviaiaa Plan =titled: Berri tan Place
g7; Allen s Major Associates, Inca dated January 16, L9 98
Tie Borth Andaver Plarnti.ng @card has voted to kPPRL70L► aaii plan, rao;ect to the
follovring canditicrut
1. That t':e record owners cC the subject land forthwith exctute and rercrc
e ^cd'w rit rurmi sg with tie larLd" j or otherwise provide security : or tits ctx�-.
strnctlor of vy73 and the ipsta.liation of murderpal Sary cen ri:hio said
dirisicm, 411.1 as 9rdvi4e.1 by C.L. c, 4.1, S. 81-U.
z. That a1.2 such C0= truttien sad installation ll :.
shan ali rsspee.s
coa_'arm t4 the gcyerns..a„g rules &m4 r 4_u_, inns of Lhi9 3aard_
3. That, as regt;ired by the• 1lcrth AWOver 3eard of RailCa in its report to
tris 30drdt as bu.1-1-U46 or other structure oha11 be built a, plsced upm Lots
50' as shown on said plan Wo.thoiit the prior
eans=t of aald Board of Health.
b. Other eowu timLs:
s
ry
rti
L1
U
tC
O<
Ln the event that yo apgesl shy is -re Seen take: from said aprroTal wttnic
Lvsni7 �7'S :; tiz dAte, the }tarth Andover Planning 300 Will Ccrthwith
:`ereeS:er ersdarsv tats Coral apvrev,t;, _pon said pls�.
W W • • • • • • • e ♦ • 4 N # 0 • v w e s . . • • ♦ • • • • • • • • • • W
ver
Date:
lan, 1':;r 'the
N73i9 ,t.`mCY� PLLM�j�r =GAf�i7
Richard S. Rowen
ZO'd 2*98 889 809 '^00 'uuOO .aanoPUV N3-AON d£O:10 B6-6Z--AdV
98 08109 14: [ 8 '$817 951 0388 � �� � Q 002
LL'ON,ArtD KOPCLMAN
KOPELMAN AND PAIGE, P. C.
DAVID J. DONESKI
DONALD C. PAfCE
SANDRA M. CNARTON
¢41xADPSTH A, LANE
ATTORNEYS AT LAW
(LANA M. QUIRK
JOYCE FRANK
PATRICIA A. CANTOR
W. G(ORGIO
37 �T. JAMES AVENUE
JOHN R. HUGKBAM, Jit.
BARB
!BARBARA J. £DINT ANDRE
84JUAN M. CALLAHAN
JOEL S. BARD
BOSTON. MASSACHUSETTS 02116-4102
THOMA`6 P. LANIL, JR.
RVERETT J. MARDER
BRIAN W. RILEY
PATRICK J. COST9660
ROC CRY PATTEN
JOSEPH L. -mma", JR!.
!417) BSB -0007
MARK R. R61CH
ANNE -MARIE M. HYLAN*
FAX (417) 0104-1Y35
MAkTL. WIDR090
THLR&SA M. DOWDY.
�-
KATHLEKN E.CONNOLLY
PITTlIFII:LD OFFICE
CHRISTOPHER J. GRaLL
T,4WARO M. REILLY
(4.13) 443.6100
KIM6EWLY A, H?LLI DAY
M14HCLC L{. RANDAZZO
DIRrCTOR WEBT'ERN CPFICE
--
DARREN R. KI,EIN
NORTHAMPTON OFFICE
THOMAS W. MGENANEY
WILLIAM HEWIG ill
1'6133 565.6(13$
JONATHAN M. SILVERSTE(N
OE'QDR,AH A. LLIASON
TIMOTHY J. 2"tN
JEANNE S. MCKNIGHT
WORCESTER OFFICE
KA'rHARINE 1. GORES
JUDITH C, CUTLER
l500) 759-0203
CHRISTOPHER J. POLL.ARY
RIGMAR0 ROWEN
KRISTEN 8. MAGENOANYZ
KATHLEEN M. O-MONNCLL
ROBERT T. FORD
LAURA NELSON KLING
June 9, 1998
BY E_A_CSIMILE - (978Y6&&-_955_6
Zoning Board of Appeals
North Andover Town Hall
I20 Main Street
North Andover, MA 01845
Re: MPG Rgalty-Co-�=5 ccs d -Application
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 fronn
MPG Realty Corp. for the same property. .[ 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 me.mbers, that the Board fiords 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 it is 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
06/09/98 14:09 TX/RX N0.9776 P.002
'98 06106 14:06 %Y617 951 0388
KQPELMAN AND PAIGE, P.C.
BY FACSIMILE X97'8) 688-9556
Zoning Board of Appeals
North Andover Town Hall
June 9, 1998
Page 2
I understand that Board meutber Walter Soule will not be available tonight, leaving the
Board with only four members present. The Hoard play procced tonight or may, particularly if
the applicant so requests, continue this ma.t:tc:r until the BOM'drs 1text Meeting when, T understand,
Mr. Soulc and the rest of the Board will be present.
JBB/das
cc: Town Manager
92132nvand/9999
06/09/98 14:09 TX/RX N0.9776 P.003
0 M)
98,06%09 14:38 00617 981 0389,. 001
t
Worcester
KOP'ELMAN AND PAIGE, P.C.
31 St. James Avenue
Boston, MA. 02116
(61.7) 556.0007 I (617) 654-1735 - Fax
Boston Northampton
THIS DOCUMENT IS CONFIDENTIAL
FAx TRANsmiTTAL COVrR SHEET
Date June 9, 1998 Number of Pages Including Cover 3
Account Code 0048 Original Will Follow Yes X No
This Fax was Sent By: Joel B. Bard Operator Initials DAS
PLEASE DELIVER To:
NAME
Zoning; Board of Appeals
North Andover Town Hall
COMMENTS OR INSTRUCTIONS:
FAx NU MER
(9.79),688-9556
PLEASE CONTACT SENDER AT (617)654-.1754 IP YOU HAVE NOT RECEIVED THE NUMBER OF PAGES
NOTED ABOVE OR IF THERE AR -C ANY PROBLEMS WITH THIS TRANSMISSION.
06/09/98 14:09 TX/RX N0.9776 P.001
APR I `
�` 13
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
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
s
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,
4
Z�chael A. Gerstein
Phillips, Gerstein, Holber & Channen
25 Kenoza Avenue
Haverhill, MA 01830
(978) 374-1131
BBO # 190040
im
FA
TO: The Town of North Andover
FROM: Geoffrey P. Smith
RE: Property of Gwendolen Cole Smith
DATE: April 14, 1998
I am writing on behalf of my mother, Gwendolen Cole Smith, who lives at 158
Dale Street in North Andover. I write both as her son and as her legal Guardian.
My mother has developed Alzheimer's Disease and now requires daily
professional care. As the disease progresses, the need for care will only increase. Our
family, in particular my sister, Susan Manning, has tried to maintain her care in her
own house. We believe this is best for her emotionally, physically, and financially.
It is the financial aspect I wish to.acquaint you with. Alzheimer's care is
expensive and, because of the nature of the disease, that expense is always
increasing. We are extremely fortunate that my mother has the assets to pay for this
care. However, a major portion of those assets (approximately two-thirds) is in the land
she now owns off of Dale Street. It is crucial for us, for her care, that this,land be made
available for development.
For this reason, I am asking you to please move the deliberation and approval
process with as little delay as possible. Our family greatly appreciates your expeditious
action on our proposal for selling the land.
---A
Geo rey P. Smith
15 Driftwood Lane
N. Branford, CT 06471
TO: The Town of North Andover
FROM: Geoffrey P. Smith
RE: Property of Gwendolen Cole Smith
DATE- April 14, 1998
I am writing on behalf of my mother, Gwendolen Cole Smith, who lives at 158
Dale Street in North Andover. I write both as her son and as her legal Guardian.
My mother has developed Alzheimer's Disease and now requires daily
professional care. As the disease progresses, the need for care will only increase. Our
family, in particular my sister, Susan Manning, has tried to maintain her care in her
own house. We believe this is best for her emotionally, physically, and financially.
It is the financial aspect I wish to acquaint you with. Alzheimer's care is
expensive and, because of the nature of the disease, that expense is always
increasing. We are extremely fortunate that my mother has the, assets to pay for this
care. However, a major portion of those assets (approximately two-thirds) is in the land
she now owns off of Dale Street. It is crucial for us, for her care, that this,land be made
available for development.
For this reason, I am asking you to please move the deliberation and approval
process with as little delay as possible. Our family greatly appreciates your expeditious
action on our proposal for selling the land.
Geoffrey P. Smith
15 Driftwood Lane
N. Branford, CT 06471
OW
TO: The Town of North Andover
FROM: Geoffrey P. Smith
RE: Property of Gwendolen Cole Smith
DATE: April 14, 1998
1
I am writing on behalf of my mother, Gwendolen Cole Smith, who lives at 158
Dale Street in North Andover. I write both as her son and as her legal Guardian.
My mother has developed Alzheimer's Disease and now requires daily
professional care. As the disease progresses, the need for care will only increase. Our.
family, in particular my sister, Susan Manning, has tried to maintain her care in her
own house. We believe this is best for her emotionally, physically, and financially.
It is the financial aspect I wish to acquaint you with. Alzheimer's care is
expensive and, because of the nature of the disease, that expense is always
increasing. We are extremely fortunate that my mother has the assets to pay for this
care. However, a .major portion of those assets (approximately two-thirds) is in the land
she now owns off of Dale Street. It is crucial for us, for her care, that this land be made
available for development.
For this reason, I am asking you to please move the deliberation and approval
process with as little delay as possible. Our family greatly appreciates your expeditious
action on our proposal for selling the land.
Geoffrey P. Smith
15 Driftwood Lane
N. Branford, CT 06471
C
Z00'd 89L6'0N X21/X1 OZ:ZI 86/60/90
Town of North Andover
oR,"
OFFICE OF
COMMUNITY DEVELOPMENT A- D SERVICESIMP
p
30 School Street
{
•
North Andover, Massachusetts 0 f 345
o* ,
'°�..., .�•" �y
�S",cHust�
IILLIAM 1, SCOTT
Director
NOTICE OF DECISION
o
Any appeal shall be filled
within (20) days after the
a. yX`T`"
'M c� :.
date of filling this Notice
in the Office of the Town
Clerk.
Date June 5, 1998.
Oate of Hearing May 19,
1998 ax .Tune 2, 1999
Petition of KPG Realty Corp,
Premises affected Lot 1 Dale 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 whether 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 given on the above date, the Planning Board
voted to allow applicants to the__ s_neical 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 RescurcelLand 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 9530 • HFALT11 - (978) 6RR-9S41J • PLANNING - (978N 6N8-9S3S
"i3Ut1_D(NGOFFfCE - ;9 8) 5821-')S45 • "ZONING: BOARD OF M'PEM.S - (979) 688-95.11 • *145 `IAIN STREET
Zola ZV96 989 809 -A&0 -WOO "OAOpud y -:1 --ION t1T i = T T 86-60-unr
£00'd 89L6'ON MAI OZ:ZT 86/60/90
PD Associates, LL C
Real Estate Comwkanb'
704 Londonderry Turnpike, Auburn, AW 0303.:
Telephone ft: (603)641-8ZU11 N
Facrlmde 11: (60,x) 611-,1881
June 3, 1998 r
'o
North Andover Planning Board --�
z
�oc� -
C/O ?vb. ]'C.sthlezn Bradley Colwell
J z ,:-
30 School Street
— .-,
North Andover, MA 01345
Y.
.:
Via Facsirrsik: 9'78-688-9542
'E
c
Dear Mr. Chairman.-:
Please accept this letter as a request by NfPG Re --,IN y Corp to withdraw our application for
the repetitive hearing, without prejudice. This is in reterenca co application made April
72od, 1998 for the Berrington Place Subdivision located cn Dale Street and described as
Map 37B, Latin.
It is my understanding that the fres will be waived in the went we resubmit a reaursc for
a repetitive nearing. Pease calf if you need any additional information.
Respectfully submined,
4m8rA-ease Il
Owner'S Representative
EAP/sp
cc: Ketutcth Grandstatf
Michael Gr:stein, Esq,
7,�
£O'd ZV96 e29 809 -AOO -tuOO .,tanopuV WI-AON VZT = II 86-60-unr
NVRTM
ow
,i0"CE 5RAG4:+yw
�4,°';:o_:w'�y� TOWN CLERK
'Ss�rU5- NORTH ANDOVER
TOWN OF NORTH ANDOVER Ara Z 12 o1 f f Iib
MASSACHUSETTS
60ARD OF AFFEALS
Any appeal shall be filed
date of filing of this Notice
within (201 days after the NOTICE OF DECISION
in the office of the Town clerk. Property: Dale St., Map 37S, 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): 13-6.2 (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 Eariey.
EOARD_OF AFPEaLS j
Raymond Aenzio. acting Chairman
Walter Soule. Zoning Board of Appeals
/decoct2
REC�.i', r `
Town of North Andover „aRTM
JOYCE -8 A ` ; _. OFFICE OF � ° •`"" ' •"o
DEVELOPMENT AND SERVICES
NORTH A.h00V'ER ILo 41
146 Main Street
Andover Massachusetts 01845 + •'' "�`
FEB I Z I' 03 PM rr
r BB 19 1998
REQUIREMENTS AND DIRECTIONS OF THE ZONING BOARD OF -APF'EAzs---------- -----
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.)
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 apar- in the local newspaper.
5. A copy of the legal notice must be sent to all abutters, by
Zoning Board of Az,zeals Secretary, via certified mail return
receipt requested ac 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.
,T?nC �D(." ��o r, �.�� ❑rm r�r ^ Gvo uc.c rnmeCT) it,'r'�r.�J Ivo oci�, uCaT TiT �,�g_c S-;.7 ..* �?��•?Arn 6oo O[7C ,
RM
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 the public hearing.
9. Any applications involving 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
MA Dept. of Public Works, District 4, 519 Appleton St.,
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
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 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 the percentage of the lot covered by the principal and
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
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
(1-0) copies of the following described pians shall be furnished:
2 of 8
ZC i . 0O . .J _ . J
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 petit ions 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
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), structures) or buildings) 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
,=" . U-) . 75
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
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.
S. 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
i
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 .g7FI-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
0
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 approval to construct roadway with required details within 751conservatior
(See attac
7. Deed recorded in the Registry of Deeds in Book 912 Page& letters
Land Court Certificate No. Book Page
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
il
to ur'sdictional wetlands. No other reasonable means are availa lean oug
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)
6 of 8
DESCRIPTION OF VARIANCE REQUESTED
ZONING DISTRICT: Residential (R-1)
Required Setback Existing Setback Relief
or Area or Area Requested
N/A
Lot Dimension
Area
N/A
Street Frontage
N/A
Front Setback
N/A
Side Setbacks)
N/A
Rear Setback
A
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.
7 of 8
PD Associates, LLC
' Real Estate Consultants
704 Londonderry Turnpike, Auburn, NH 03032
Telephone #:(603)641-8200
Facsimile #:(603)641-8882
January 16, 1998
Planning Board
Town of North Andover
' 30 School Street
North Andover, MA 01845
' Attn: Ms. Kathleen Bradley Colwell
Dear Ms. Colwell:
Please accept this letter for submission along with the Special Permit Application for
Dale Street, Map 37B, Parcel No. 1. I have also included the 9 sets of prints, fees and
related information that is required pursuant to your ByLaw.
Checklist Items.
1. 3 copies of the Application. Included
' 2. 9 Set of Plans. Included with Definitive Submittal
3. Written Certification for
Water Quality Impact Report -Exhibit "D"
Water Quantity Impact Report -Exhibit "H"
4. Alternative Access Report Enclosed
5. Filing Fees of $2,100.00
Separate checks. Enclosed
6. Abutter's List (Certified by Assessor) Enclosed
I7. Abutter Notification By Town
If you have questions, please feel free to call me at anytime.
IRespectfully,
Elmer A. Pease, II CPM, EA
Owner's Representative
EAP/sp
cc: Ken Grandstaff
Michael Gerstein, Esq.
i
PD Associates, LLC
Real Estate Consultants
1600 Candia Road, Suite #7, Manchester, NH
August 10, 1998
Zoning Board of Appeals
Town of North Andover
146 Main Street
North Andover, MA 01845
Telephone #:(603)641-8200
Facsimile #:(603)641-8882
Re: Application for Repetitive Hearing/Variance - Dale Street —
Map 37B -Lots #1 thru #8
Via Facsimile: 1-978-688-9556/Original to Follow
Dear Mr. Chairman:
We recently received notification from the court regarding the appeal filed for our
Definitive Subdivision known as Berrington Place. The court dismissed the appeal, thus,
allowing us to proceed with the signing of the mylars and scheduling of the Planning
Board Repetitive Hearing.
The Planning Board is not able to schedule us on the August agenda, however, set the 2°d
of September for our Repetitive Hearing date. In light of this fact, we respectfully
request a continuance until your next September hearing. This will allow us ample time
to meet with the Planning Board prior to the Zoning Board of Appeal hearing in
September.
If you have any questions and comments, please feel free to call.
Respectfully submitted,
Elmer A. Pease, II CPM, EA
Owner's Representative
EAP/sp
cc: Michael Gerstein
Kenneth Grandstaff
3K
6086418882
ssociates, LLC
Cons�eharrrre
is Road Suite #7, Manchester, NH 03109
August 10, 1998
Zoning Board of Appeals
Town of North Andover
146 Main Street
North .Andover, MA 01845
PD ASS+-+C'IATES
PAGE 01
TetepJkoree #: r6oJjd Il-BZ��o
Facsimile M.-(603)641-8882
1 �n
AUG 1 ( 1998
Re: Application for Repetitive Headng/Variance - Dale Street —
Map 37B -Lots #1 thru #8
Via Facsimile: 1-978-688-9556/06ginal to Follow
Dear Mr. Chairman:
We recently received notification from the court regarding the appeal filed for our
Definitive Subdivision known as Berrington Place. The court dismissed the appeal, thus,
allowing us to proceed with the signing of the mylars and scheduling of the Planning
Board Repetitive Hearing.
The Planning Board is not able to schedule us on the August agenda, however, set the 2" d
of September for our Repetitive Hearing date. In light of this fact, we respectfully
request a continuance until your next September hearing, This will allow us ample time
to meet with the Planning Board prior to the Zoning Board of Appeal hearing in
September..
If you .have any question# and comments, please feel free to call,
Respectfully submitted,
L� d
Elmer A. Pease, II CPM, EA
Owner's Representative
EAP/sp
cc: Michael Gerstein
Kenneth Grandstaff
08/10/98 11:08 TX/RX N0.0908
a
Z o
o �
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co
.0 m CD rrp
Cwt•"�C:J
rn;K=
ca
P.001
+9'9/11,1998 13:C10 6036418822 PL's HSSS+u_IATES RIACTE Za1
JAYQF RPh.pr;tAw
TOWN VIR KI
N09TH ANDD ER
DA'Z'E: Ag. 1 I
1998
UG n 2 17 Am �J8
To: Zoning Bard of Appeals
Town Hall
120 Main Street
North Andover, NIA 01845
Please be advised that I have agreed to waive the time constraints for the Zoning Board of
Appeals to make a 4=1sion regarding the granting of a VARIANCE. for property located at:
Name: Ucniag= P — Lot 1
Street: Q* supet
Town' North
Signed:
(Petitioner's rep =ntative) Elmer A. Pea
cc: Town Clark
08/11/98 13:02 TX/RX N0.0942 P.001
F-19/01;'1998 11:19 6036418882 FD ASSOCIATES LLC
.PD Associates, LLC,'
Real Fvtate Cn a,sul#ants .
1600 Candia Road, Suite 97, Manchester, NH 03109
September 2, 1998
Zoning Board of Appeals
Town of North Andover
146 Main Street
Noah Andover, MA��S-�^�^"�"'�""""'"'°
RE: f, -Application for a Repetitive HearinglI jance —
Dale Street— Map 37 s-#-I-tt5ru #8
Via Facsimile: 1-978-688-9556/Original to Follow
Dear Mr. Chairman:
P46E 01
TelePho►►e #: (do3)tW1-BZoo
.Facsimile. #:(603)641-8882
We respectfully request withdrawal of our application for the above referenced application
without prejudiced as a continuance at this point would not benefit either party. In discussions
with the Planning Department, their portion of tha request for dismissal of the underlying appeal
for the subdivision of the property has not, as of this date, been received.
At the time we received our request for dismissal, it was not known that the town had not filed
their request for dismissal as well. This delay obviously postponed the opportunity for the
Planning Board to sign our plans and schedule the necessary Planning Board Hearing for the
Repetitive .Hearing .Request. Tt is my understanding at this time, that the Town's Counsel .has
submitted the necessary documentation and should receive word from the courtin the near future.
In light of the fact that it is paramount to complete the Planning Board process first, this will
allow us the necessary time to get our plans signed and meet with the Planning Board on our
application for the Repetitive Hearing as set .forth in your Zoning Regulations. Once that has
been accomplished, I will then resubtnit an application and the proper notices to the Zoning
Board of.Appeals. 1 would request that the ZBA retain the submittal materials that were provided
irk the current filing so that 1.need only submit a new application with the standard fees.
1, on behalf of my clients, apologize for these delays, however, we were unaware of'the dismissal
sought by the 'Gown. if 1 or our attorney can provide any further information or answer any
questions, please feel free to call. Ifyou ,, ould require one of us to attend the meeting for
consideration of our withdrawal, please have your secretary notify us of the day and time of the
meeting.
R es cc tfully,
Elmer A. ,Pease, (,i CPM, .E.A
EAP/sp
Cc: Michael Gerstein
Ken Grandstaff
M
SIR.
09/03/98 18:11 TX/RX N0.1332 P.001 �?'
PD Associates, LLC
Real Estate Consultants Telephone #:(603)641-8200
1600 Candia Road, Suite #7, Manchester, NH 03109 Facsimile #:(603)641-8882
September 2, 1998 .. r'
Zoning pp Board of Appeals
Town of North Andover
146 Main Street
North Andover, MA 01845
RE: Application for a Repetitive Hearing/Variance —
Dale Street -- Map 37B -- I_,ots #1 thru 48
Via Facsimile: 1-978-688-9556,'Original to Follow
Dear Mr. Chainnan:
We respectfully request withdrawal of our application for the above referenced application
without prejudiced as a continuance at this point would not benefit either party. In discussions
with the Planning Department, their portion of the request for dismissal of the underlying appeal
for the subdivision of the property has not, as of this date, been received.
At the time we received our request for dismissal, it was not known that the town had not filed
their request for dismissal as well. "I -his delay obviously postponed the opportunity for the
Planning Board to sign our plans and schedule the necessary Planning Board Hearing for the
Repetitive Hearing Request. It is my understanding at this time, that the Town's Counsel has
submitted the necessary documentation ;and should receive word from the court in the near future.
In light of the fact that it is paramount to complete the Planning Board process first, this will
al low us the necessary time to get our plans signed and meet with the Planning Board on our
application for the Repetitive Hearing as set forth in your Zoning Regulations. Once that has
been accomplished, I will then resubmit an application and the proper notices to the Zoning
Board of Appeals. I would request that the ZBA. retain the submittal materials that were provided
in the current filing so that 1 need only submit a neNv application with the standard fees.
r
C-1 1^enQ1r of nY r.l;�x,tc, ;,p,n'n���aP i 5„��F+,-IPi' c s IIew.;pv.or we''we're n -. e�cn��ccal
sought by the Town. If I or our attorney can provide any further information or answer any
questions, please feel free to call. If you would require one of us to attend the meeting for
consideration of our withdrawal, please have your secretary notify us of the day and time of the
meeting.
Res Pctfully, /�
Elmer A. Pco,::,e, 11 CPNi , FA
EAP/sp
Cc: Michae. Berstein
lien Grandstaff
46
PD Associates, LLC' a
Real Estate Consultants Telephone #:(603)641-8200
1600 Candia Road, Suite #7, Manchester, NH 03709 Facsimile #:(603)641-8882
September
2, 199.8
Zoning Board of Appeals:, �f, ; • ;
Town of North Andover
146 Main Street'
North Andover, MA 01845 L I l Il s "'
RE: Application for a Repetitive Hearing/Variance —
Dale Street — Map 37B — Lots #1 thru #8
Via Facsimile: 1-978-688-9556/Original to Follow
Dear Mr. Chairman:
We respectfully request withdrawal of our application for the above referenced application
without prejudiced as a continuance at this point would not benefit either party. In discussions
with the Planning Department, their portion of the request for dismissal of the underlying appeal
for the subdivision of the property has not, as of this date, been received.
At:the,time. we -received,.our request for dismissal, it was not known that the town had not filed
their request for dismissal as well. This delay obviously postponed the opportunity for the
Planning Board to sign our plans and schedule the necessary Planning Board Hearing for the
Repetitive Hearing Request. It is my understanding at this time, that the Town's Counsel has
submitted the necessary documentation and should receive word from the court in the near future.
In light of the fact that it is paramount to complete the Planning Board process first, this will
allow us the necessary time to get our plans signed and meet with the Planning Board on our
application for the Repetitive Hearing as set forth in your Zoning Regulations. Once that has
been accomplished, I will then resubmit an application and the proper notices to the Zoning
Board of Appeals. I would request that the ZBA retain the submittal materials that were provided
in the current filing so that I need only submit a new application with the standard fees.
I; on behalf of my clients,apologize;fUr triose delays, bgy�eKer, we were :unaware of the dismissal i
sought by the Town. If I or our attorney cari`prpvfu
ide'any'rther informatiori`or Wanswer any "` ,5
questions, please feel free to call. If you would require one 'of us to attend the meeting for ;
consideration of our withdrawal, please have your secretary notify us of the day and time of the
meeting.
Res Pctfully,
Elmer A. Pease, II CPM, EA
EAP/sp
Cc: Michael Gerstein
Ken Grandstaff
41
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)
LIU
APR 13 19T/, ,
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
h
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
W
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.
w
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,
chael A. Gerstein
Phillips, Gerstein, Holber & Channen
25 Kenoza Avenue
Haverhill, MA 01830
(978) 374-1131
BBO # 190040
ID
APR 131998
a
�, S7 J7&, 4,77
I Iqrl APR
13 1998
-Y Z7
M -E -M -O
TO: Amy
FROM: Mary Leary-Ippolitof,,�
DATE: April 29, 1998
Per my phone conversation with Mrs. Shelly Shuman, I've enclosed her letter dated
4/9/98, to the ZBA stating that she is not in favor of MPG Realty's request to build a
roadway.
She wishes to use this same letter for the same purpose relative to the May 19th
Planning Board meeting and asked if you would submit it on her behalf.
Thank you,
Mary
enclosure
ml/shelly
/vC.w 4-,- (/,) /f/L
1. EAPR1998,
BOARD_ OF APPEAL
I
FAX
TO:
Elmer A. Pease
PD Associates, LLC
Phone
Fax Phone 603-641-8882
CC:
Date 03/23/98 �r
INumber of pages including cover sheet 2
FROM: Mary Leary-1ppolito
Zoning Board of Appeals
Town Hall
120 Main St.
North Andover, MA 01845
Phone (978) 688-9541
Fax Phone (978) 688-9556
REMARKS: ® Urgent ❑ For your review ® Reply ASAP ❑ Please Comment
You will need to place the attached legal notice in the Lawrence Eagle Tribune
(legal notice advertisement section), no later than 3/26/98 in order for it to appear in
the Tribune for 3/31/98 and 4/7/98.
Thank you,
Mary
Please call me to confirm receipt of this fax: phone: 978-688-9541, or 688-9545
mlfax