HomeMy WebLinkAboutLEGAL CORRESPONDENCE W/KOPELMAN & PAIGE Town of North Andover NORTH
Of 4z�io ^.iti0
OFFICE OF 3? a o�
COMMUNITY DEVELOPMENT AND SERVICES A
146 Main Street
�A�TfO-�TP��LJ
KENNETH R.MAHONY North Andover,Massachusetts 01845 SAC Us
Director (508) 688-9533
Fax Transmittal Sheet
To: ��
Fax #
From: Kathleen Bradley Colwell, Town Planner
Date: beck y'�! fix— 2-,
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m� Cat c -a-\yj✓7�C_CA r�1-Total number number of pages (including cover sheet)
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BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535
Julie Pairino D.Robert Nicetta Michael Howard Sandra Starr Kathleen Bradley Colwell
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4. 133 Watershed District "
( 1 ) Purpose:
The Watershed District surrounding Lake Cochi.ch-
ewick, our source of water supply, is intended
to preserve and maintain the filtration and
purification function of the land, the ground
water table, the purity of the ground water and
the lake, to conserve the natural_ environment
and to protect the public health, safety, and
welfare.
(2 ) Prohibited Uses :
a) Dumping trash, rubbish, garbage, wood
stumps, peat, junk, or other waste
materials, underground steel storage tanks
for petroleum products shall he prohibited .
( 1985/13 )
(3 ) Dimensions and No Build Requirements :
a) Boundaries of the Watershed District are
'. designated specifically on the certified
North Andover Watershed Map, 1.978, and
are shown on the Zoning Map . These maps
are hereby made a part of this By-Law and
are on file in the office of the Town Clerk.
b) When the Watershed District boundary divides
a lot of record on June 26, 1978 in one
ownership, all the zoning regulations set
forth in this Zoning By-Law applying to the
greater part by area of such lot so divided
may, by Special Permit, be deemed to apply
and govern at and beyond such Watershed
District boundary, but only to an extent not
more than one hundred ( 100) linear feet in
depth (at a right angle to such boundary)
into the lesser part by area of such lot so
divided.
c) A no-cut buffer zone shall exist one hundredww
f ty J 150) feet„„bar „zo,nta 1 l
f i. ��rom W thAw„
1 annual mean hlg-hMpwater mark of mLake Coch -
ewick and ,twenty-five (25F feet horizontal�,y
. .
from the epd eo of all tributaries _in the..
WaterwshedmW m. . .w .-� .
n shall occur two hundred
wstructio........ - .. w�.� y. b
fifty 250mu heh water-mares o�LaWkWetheta
No con
.w
an.nu a 1 mean ��Ii Cochhich„ewi.ck. and once un r a,w wl �w fa�t
horizonta)-_Iy...................f,K9F "h
....... f al i t rivaries. The intent herein is d men sional
and the North Andover Board of als shall
grant
? up a g of
substantial hardshion p owing to showin the soil.,
shape` or topography of the land, incl.uding*
the right to cross such tributaries .
( 10,85/14)
(4 ) Lake Cochichewick Preservation Amendment
( 1985/12 )
a) Notwithstanding anything contained in this
bylaw to the contrary, !12_pe.rTi jih
,qoi I,
issued for the construction of any new
building, structure, road, or driveway or
for earth removal, except -for the proposed
municipal water filtration plant, within the
Watershed District for e ( 3 )
rj o,1do_f three~„'e.', ',.'
gears from _ ...... ....... .....
the effective date of this
........... .......................
amendment .
b) This amenm dment shall not apply to any
renovation, alteration, or addition to an
existing building, structure, road,
driveway, or any structure in agricultural
or horticultural use.
c) A use variance may be granted by the Board
of Appeals for the issuance of a building
permit within this three-year period but not
for a use not otherwise allowed by the
district regulations .
4.134 Flood Plain District
(1 ) Flood Plain District
The Flood Plain District is herein established
as an overlay district . The underlying per-
mitted uses are allowed provided that they
meet the Massachusetts State Building Code
dealing with construction in floodplains and
the following additional requirements . The
Flood Plain District includes all special
flood hazard areas designated as Zone A,'
Al-30 on the North Andover Flood Insurance
Rate Maps, (FIRM) , and the Flood Boundary
and Floodway Maps, dated June 15 , 1983 , on
file with the Town Clerk, Planning Board,
Conservation Commission, and Building
ding
Inspector . These maps, as well as the
accompanying North Andover Flood Insurance
Study, are incorporated herein by reference.
-10-
The words Special Permit where used in this By-Law
shall mean a permit granted under the guidelines of
Section 9 of Chapter 40-A of the General Laws .
2 .65 Special Permit Granting Authority
The Planning Board shall be the granting authority of
*1985/18 all Special Permits to Cluster Development, Planned
Development District, ( 1985/15 ) driveways , Cite plan
review and large estate condominium conversions . The
Board of Selectmen shall be the granting authority of
all Special Permits pertaining to non-accessory signs
as specified in Section . 6 .52 of this By-Law. The
Board of Appeals shall be the granting authority of
all other Special Permits allowed in this Zoning By-
Law.
2 .66 Special Permit Use
A use of a building or lot or an action upon premises
which may be permitted under this By-Law only upon
application to the appropriate Special Permit
Granting Authority for a Special Permit and subject
to the approval of such Permit Granting Authority
and the conditions stipulated.
2 .67 Street
A public way or a private way open to travel, by the
general public, or a way shown on a plan of a sub-
division theretofore duly approved by the Planning
Board.
2 .68 Structure
Means a combination of materials to form a construc-
tion that is safe and stable, including, among
others, buildings, stadiums, tents, reviewing
stands, platforms, staging, observation towers ,
radio towers, water tanks, towers, private and
public swimming pools, trestles, piers and wharves ,
sheds, shelters, fences and walls, and display
signs; the term structure shall be construed as
if followed by the words "or part thereof" ..
2 .69 Town House
An attached house in a row of three or more such
houses capable of being sold as an independent
dwelling with its own lot, as provided by the
By-Law.
2 . 70 Tributary
F,501,
ion of any brook, stream, bog, swamp or pond
..............................................................................................................................................�E ........ .................... ..
which flows into Lake Coc ichewic
2 . 71 Yard (setback)
An open space which lies between the principal
building or group of buildings and a lot line.
2 . 72 Yard, Front (setback)
An open space extending across the entire width of a
lot between any building thereon and the street lot
line of the lot on which such building stands .
2 .73 Yard, Rear (setback)
An open space extending across the entire width of a
lot between the rear of any building thereon and the
rear lot line of the lot on which such building
stands .
2 .74 Yard, Side (setback)
An open space between the side line of a lot and the
adjacent side of any building thereon, such open
space being understood to cover the entire extent
between the front yard and the rear yard on such a
lot .
2 .75 ( 1985/25 )
2 .76 Planned Development District
1 . Planned Development District - A Planned Develop-
ment District shall mean development of an area of
land as a single entity, which lies in an Indus-
trail-S (I-S) District, in which a mixture of resi-
dential , open space, commercial, and/or industrial
uses, and a variety of building types and designs
are determined to be sufficiently advantageous to
render it appropriate to grant a Special Permit to
depart from the normal requirements of the district
in which the PDD is to be located, to the extent
authorized by this Zoning By-Law.
2 . Usable Open Space - The part or parts of land or
structure within a PDD which are reserved for active
or passive recreation use. This space shall exclude
parking areas, driveways, and walkways and open areas
in commercial areas such as cafes and shall be open
and unobstructed to the sky. Trees, plantings,
arbors, fences, sculpture, fountains, swimming pools,
open-air recreational facilities, laundry apparatus
and similar objects shall not be considered ob-
w �
LEONARD KOPELMAN KOPELMAN AND PAGE, P. C. J//,,N " � NE� M��W IG HT
DONALD G. PAIGE 'd JUDI 'C.CUTLER YLAND
ELIZABETH A. LANE ATTORNEYS AT LAW ANNE-MA E M. BOWED
ARD"��
JOYCE FRANK
Mn ION SKI
JOHN W.GIORGio 101 ARCH STREET
�AXµ.,AARTON
BARBARA J.SAINT ANDRE BOSTON, MASSACHUSETTS 02110-1137
ILANA M.QUIRK
JOEL B. BARD BRIAN W.RILEY
EVERETT J. MARDER BOSTON OFFICE JOHN J.KENNEY,JR.
PATRICK J.COSTELLO (617)951-0007 MARY L.GIORGIO
FAX(617)951-2735 KATHLEEN E.CONNOLLY
JOHN G.GANNON
JOSEPH L.TEHAN,JR. KURT B. FLIEGAUF
WILLIAM HEWIG III NORTHAMPTON OFFICE
(413)585-8632 MICHELE E.RANDAZZO
PETER J.FEUERBACH
THERESA M.DOWDY
AARON M.TOFFLER
DEBORAH A. ELIASON WORCESTER OFFICE
PREISIG
(508)752-0203 ANNE C. PR EISI
I
January 2, 1996
VIA FACSIMILE (508) 688-9556
Planning Board
North Andover Town Hall
120 Main Street
North Andover, MA, 01845
Re: Lot 1 Dale Street
Dear Members of the Planning Board:
Pursuant to your request, I have reviewed several documents
related to Lot 1 on Dale .Street. The lot is located within the
Coventry Estates Subdivision. The owner of the lot has applied
for a special permit to construct a single-family dwelling in the
Watershed Protection District. You have asked which version of
the Town's Zoning Bylaw applies to this lot, i.e. , current or
1984/1985. You have also asked what authority the Board has to
restrict construction or activity on the lot given that the
entire lot is within 100 feet of a wetland. I will address each
issue separately.
Applicable Zoning
According to the information submitted by the applicant, a
preliminary subdivision plan was filed for Coventry Estates in
"May, 1985. " Kathleen Colwell has informed me that the date on
which the plan was submitted appears to be December 26, 1984.
The applicant does not state when the definitive plan was filed,
but states that it was approved by the Planning Board on December
16, 1985, then endorsed by the Board on March 24, 1986. Ms.
Colwell informs me that the definitive plan application was filed
July 24, 1995.
Pursuant to G.L. c.40A, §6, land shown on an approved plan
is entitled to an 8-year "zoning freeze," beginning from the date
of endorsement. As discussed below, the 8-year period may be
extended by litigation. The "frozen" zoning is the zoning in
effect when the preliminary subdivision plan was filed. Based on
PRINTED ON RECYCLED PAPER
KoPELMAN AND PAIGE, P.C.
Planning Board
January 2, 1996
Page 2
the above facts, Lot 1 was governed for 8 years by the zoning in
effect on December 26, 1984.
Given the date of endorsement of the Coventry Estates
Subdivision (March 24, 1986) , the 8-year zoning freeze appears to
have expired on March 24 . 1994. The anpl.?_cart suggests that the
zoning freeze is extended by virtue of litigation affecting this
land which lasted for approximately four years. I assume the case
referred to is Joseph Mahoney, Trustee v. Paul Tariot, et al.
(North Andover Conservation Commission) , Essex Superior Court,
C.A. No. 91-1522 . According to our files, and a confirming
telephone call with the Essex Superior Court, that case was
dismissed by the court by Order dated June 7, 1995. On that
date, an Order entered dismissing the case unless an Agreement
for Judgment was filed within sixty days. None was filed.
The language in the Zoning Act allows the zoning freeze
period to be extended for the length of litigation affecting the
lot, "provided final adjudication is in favor of the owner of
said lot. " G.L. c.40A, §6. In this case, there was no "final
adjudication, " but a dismissal by the court. A dismissal of the
plaintiff's case would not, in my opinion, be found to be in the
plaintiff's favor. Based on the facts, it is my opinion that the
lot would not be entitled to the zoning freeze.
Special Permit Regulation
Based on the above, it is my opinion that Section 4 . 136 of
the current Zoning Bylaw ::;cr-,D1.L, �, vr;,,•° .gave asked for guidance as
to the Board's authority to restrict activity on this lot all of
which is within 100 feet of a wetland which is part of the
Watershed District (and, therefore, under the jurisdiction of
this special permit) .
As the entire lot is within 100 feet of a wetland, it falls
under the Watershed Protection regulations which apply to lots
created prior to October 24, 1994. As such, the entire lot is
within a non-disturbance buffer zone and the special permit
criteria for this zone will apply (which also includes securing a
variance from the Zoning Board of Appeals, for construction of a
new permanent structure) . Under these provisions, the Board has
wide latitude, in my opinion, to regulate the location of any
structure and other alterations to the lot.
KoPELMAN AND PAIGE, P.C.
Planning Board
January 2, 1996
Page 3
To the extent that the Board might be considering a complete
ban on construction on the site, it is my opinion that the
"takings" issues which arose with the Wilner lot would be
relevant again. Under numerous court cases, most recently Lopes
v. Peabody, 417 Mass. 299 (1994) , a decision to prohibit any
"economic °use" of the lot would subject the Town to a claim that
the land had been taken from the owner without just compensation.
I understand that, in the case of this lot, there are several
arguments in favor of finding that the value of the lot, and
therefore the amount of compensation, might be relatively small,
but that would be a matter for a court to decide (if there had
been a ruling that the land had been taken) .
Do not hesitate to contact me if you have any further j
questions regarding this matter.
Very truly yours,
3• el B. Bard
JBB/ps
cc: Acting Town Manager
i
Town of North Andover NORTH
Of t��eo 61ti0
OFFICE OF �? yc a pL
COMMUNITY DEVELOPMENT AND SERVICES ° : A
o 41
- .
146 Main Street
KENNETH R MAHONY North Andover, Massachusetts 01845 SSACHUSe
Director (508) 688-9533
Fax Transmittal Sheet
Fax # slf� t w .1
From: Kathleen Bradley Colwell, Town Planner
Date:
r -
1
i . r
a
I
i
i
Total number of pages (including cover sheet) '
i
i
BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535
Julie Parrino D.Robert Nicetta Michael Howard Sandra Starr Kathleen Bradley Co1weU
FORM B
APPLICATION FOR APPROVAL OF A PRELIMINARY PLAN
December 20 19 1
To the Plauiing Board of the Town of North Andover:
The undersigned, being the applicant as defined under Chapter 41, Section 81—L,
for approval of a proposed subdivision shorn on a plan entitled
"Coventry", North Andover, MA
By Merrimack Engineering Services dated December , 19 8.
being land bounded as follows:
Easterly by Smolak land; Southerly by South Bradford Street ;
Westerly by land of the Town of North Andover;
Northerly by Dale Street
hereby submits said plan as a PRELIMINARY subdivision plan in accordance with the
Rules and Regulations of the North Andover Planning Board and makes application to
the Board for approval of said plan.
Title reference: North Essex Deeds, Book5186i Page 2� ; or
Certificate of Title No._# Registration Book , Page ; or
Other:
Applicant's signature: ( L
Received by Torn Clerk: d
Date: Applicant's address
100 Lindberg Ave
Time: Methuen, MA 01844
Signature: Owner's signature and address if not the
applicant:
h8� Wd 0? 9l 330 „ r
HAOUV HINON
MIJ N*0j
03A1333U 7 ,
Notice to APPLICANT/TOWN CLERK of Action of Planning Board on Preliminary
Subdivision Plan entitled: Coventry Preliminary Plan
Ay: Beta International Inc. dated May 1985
�x X 31'Drac Nd�E,K�6i�r�c 1�XaYi34iSn'�Xg6�4�C KdrsX�feYi3��X��� �Ysl�XPiX�
X X X�4�CtX 1�ti�C d(df�X�Ci?E�($fi�S�C�B{eki�tX
0 xzx x xDtdc xa��K�?Xv(i)�c Ie�nx»h�c Ks�e)C i�x �62i� �42�C�3c>E24e
3. The North Andover Planning Board has tentatively approved said plans
subject to the following modifications thereof:
Very truly yours,
NORTH ANDOVER PLANNING,BOARD
BY Mit�haP" l P RnhArtc� t--'haiwmar,
H3AOQE�� �ii»ON ••�
'Au-13 1,101 Date: May 28, 1985
Qy0113INVO
Q3Ai3Q3H
DECISION - CONDITIONAL PPROVAL
COVENTRY PRELIMINARY P1.rN
PLAN DATED: MAY 1985 BY
BETA INTERNATIONAL, INC.
1. A Notice of Intent shall be filed with the Conservation
Commsission as .required under Chapter 131 - Wetland Protection Act
and the local Conservation Commission regulations .
2. In accordance with the Board of Public Works recommendations:
a . The Dale Street water main shall be extended to the N. E.
of Lot #15, and be of twelve ( 12 ) inch ductile iron with
hydrants every 500 feet;
b. The water main on Coventry Drive shall be eight ( 8) inch
ductile iron with hydrants every 500 feet and eight ( 8) inch
gate valves at sta. 10+00, 20+00 and at South Bradford Street .
C . The water main on South Bradford Street shall be twelve
( 12 ) inch ductile iron with hydrants every 500 feet and at the
end of Lot #17 ;
d. A sewer profile shall be provided for the proposed sewer
on Coventry Drive, South Bradford Street, and Orchard Path;
e. The two proposed pumping stations shou.ld 'be designed in
accordance with the Rules and Regulations of the Board of
Public Works .
3 . In accordance with the Fire Departments recommendation:
a. Fire hydrants shall be within 500 feet along the proposed
roadways as required under SECTION VF "WATER FACILITIES" ;
b. The section of South Bradford Street from Dale Street to
the intersection of Coventry shall be upgraded for the
proposed lots along South Bradford Street;
C . All lots within the Watershed must comply with the Fire
Departments regulations for underground fuel storage;
d. All lot numbers shall be posted during construction;
e. Permanent house numbers shall be posted on dwellings prior
to occupancy;
f . No open burning will be permitted except during open
burning season under fire departments regulations .
4. In accordance with the Highway Departments recommendations ,
the road grades shall be modified at the definitive stage to
minimize the proposed 7. 9 percent road grade to 7 percent .
5. The submission of the definitive plans will be accompanied
with documentation as to the status of the proposed Orchard
Path, and if necessary, releases from abutters indicating the
legal ability to construct Orchard Path in accordance with the
Planning Board' s Rule and Regulations .
6. There shall be no burying of stumps in the Watershed per
SECTION 4. 133( 2 ) OF THE NORTH ANDOVER ZONING BYLAW. Any areas
outside the Watershed to be stumped shall be clearly
delineated on the submitted definitive plans to be reviewed
and approved by the Planning Board and Highway Department .
7 . The applicant shall submit a Statement of Environmental Impact
as required under_ SECTION IIIBS to the Planning Board.
Information describing in detail the impact on Town Services
SUBSECTION E shall be included .
8. Drainage calculations shall be submitted to reflect surface
runoff to zero in both the 10 year and 100 year storms .
9. A waiver from the North Andover Planning Board' s Rules and
Regulations must be requested in writing for the approval of a
dead end street exceeding 500 feet .
10. The applicant shall forward the required documentation
regarding the status of said parcel under M.G.L.Chapter 61A as
Classified Agricultural Land prior to filing a definitive
plan.
kn/196
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