HomeMy WebLinkAboutLEGAL CORRESPONDENCE W/HATEM & MAHONEY LAW OFFICES
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127 TURNPIKE STREET
NORTH ANDOVER,MASSACHUSETTS 01845-5095
VICTOR L. HATEM (508) 685-3368
ALSO ADMITTED IN N.H. FAX: (508) 682-1712
JOSEPH V. MAHONEY
PETER L. HATEM
ALSO ADMITTED IN FLORIDA AND N.H.
January 2 , 1996
Kathleen Colwell
Town Planner
Town Hall
Main Street
North Andover, Massachusetts 01845
Re: Lot 1, Dale Street (House #475)
Dear Kathleen:
The above referenced Application for Special Permit is
scheduled for this evening.
Due to the weather, timing and questions as to whether there
will be a quorum available for the meeting, I would request that
the matter be postponed until the February 6, 1996 meeting.
In addition, I will be filing a amended application which
indicates that the correct date of the filing of the preliminary
plan application (Form B) was on December 26, 1984 . This is the
reason that the Application for Special Permit was under the 1984
Zoning By-Law.
Should you have any questions, please do not hesitate to
call.
Sincerely,
eter L. atem, a orney
for the October Lane Trust
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2-1-96 From. ti } 'Victor L. Hatem, Esq.
t
Joseph V. Mahoney, sq n
Peter L. Ha tefft, Esq.
Susan Riach
Marlene Maj()r
l ) T i zt . :acart
Please Deliver the Following Pages To:
NAM:—, Kathleen Colwell _
FIRM; pawn of No)ixth tlf ttt ,eX
CI'T'Y, STATE we are lending 5 ___ _pager:,, including this cover
sheet. If you do not receive all the p`a e5,
F g lease call far:
imadiat:el.y. Thank you.
Telephone Number: ( 508) 685-336
Teleeoiler Number: ( 508 ) 682-1712
Client Reference: I,ot 1 vale Street .._m U2080 - -
FAX MESSAGE IS INTEN`E THE INFORMATION CONTAINED IN THIS �
ONLY FOR THE PERSON D CONFIDENTIAL USE OF THE ABOVE
RECIPIENTS. ' THE INFORMATION MAY BE ATTORNEY CLIENT
COMMUNICA•TI6I AND AS SUCH PRIVILEGED AND CONFIDENTIAL. IF THE
READER OF THIS MESSAGE IS NOT THE INTENDED RECIPENT OR AX AGENT �
RESPONSIBLE! FOR DELIVERING IT TO THE INTENDED RECIPENT, YOU ARE
1
HEREBY NOTIFIED THAT YOU HAVE RE�`E�C� D THIS IDOCtZIZNT IN 'ERROR AND
THAT ANY REVIEW, DISSEMINATION, DISTRIBUTIONF OR COPYING OF THIS
MESSAGE I STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIN
COM,4UNICATION IN ERROR PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE
AND RETURN THE ORIGI2+a MESSAGE TO US BY MAIL. WE WILL GUARANTEE
POSTAGE. THANK YOU
NOTES
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01 r 2 55 12-r 47 rCl -� C OL-WTON 10 -° 01 6-�8 9542 NU,'mss`? VA
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COLANTONIOG�
ENC( "P'Er75 RaWu
January 10, t
plawain i DO&-d
ctv Ms.kathieen atadley Colwell
Town PIMnMer
Town Of North Andover
124 M4W Sheet
North Ando er,MA 0154
Eagi ee£ing Review
Lot l Dal;5tre�
Proposal No. 1- r o
Dent fats.Colvvell.
blur 4 rlantonzo, Inc. is pleased to provide you with this proposal to perform
e � Services associated NW1 the move project. It is ou_r understanding that .ve
are to rOview the plate,and cair. a ens for the above refe oed single family houm lot
in the Tovm of North Aildover. Specifically, Out redo v woUld issues associated wM the
S fal Pcfnnit fUing under file Watetshhed ?Wteotioa MsWot Bylaw. The plans would
Woo bo rov-pwed for codorniance to stondaW ormgineving design practices.
Included iA tWs proposal is a ScOpe of ServizLs which oudi s the spceLfic tasks to bk
perfOM , a listing of Additional Services which are excluded ftm this con+.mo. and
discussions of SoWule,Fce and Basis of Payment.
I.II SCOPE OF SERVICES
1.1 Reviety the plans aW ealcWations for conformazac: with the req%44pe eent.,
of the Wwnhed ProWfiotl thistrict bylaw as well as standard 4aagineeling
15r�tice,
1
1-2 Visit the property to obse�rve e�dsting ow. itio=on the site.
1.3 nape a letter report wMal,;,
,11ting on the plazas and calculations,
i ark olive.su11a®rte
I,P.;49 W-ER` '-CUB lTONIO y 5W W.8 13542 M7.ea M7
2,01 ADDITIONAL STAVICES
tWciler&C ►1 nConio,Inc,would`v-e glued to provide the following additional services.if
re�lred or�&6red, for mutually agreed upon additional conalaanam on. Such additi,=4
Spices wtittld involve fM in addifion to what is indic l in Section 4.0 of this
propoml. Attachcd is a Fee ichedttie which will be used to emblishh billin$5 for services
not spccif`ically covered k y this contact.
2.1 Aftenda=at toeetin;s,
2.2, Additional revieV=r or prepattkion of addidonal reports.
13 Additional field visits.
3.0 SCHEDULE
CO1cr & C014ntonio, Inc. NAll cart MO= work upon receipt of written at6ozization to
proceed. Typically Ono to two week-axe required to perform the tasks list ill the Scope
of erwicos.
4,0 FED
T'lte fee to Perform the serviWs listed in the R-op e of Scrvices would tie $1900 for the
itl%rmtiori In 11=4, 'This is a not to exccrd for the tasks listed In ttte Scope. You
will be bilied based on actual hours worked on file pxoject. Feos for services listed under
Ad€lid,01 f Services, if required, would lie billed on a time and .materials basis in
ac;corkiAtIce with the anaeW Fee Schedule.
The f=s describer alive do not ioclode expenses, Expcnsacs stfoh w mileage.
reprogmpbic costs,etc,would be billed at cost pies a,Meen percent(IS%)administrative
charge.
5.0 BASIN FOR PAYMENT
Wvoioes for seevzce;s will be submitted tnor Uy. By the ssrolLo of this proposal, it is
allted Arid understood # l4ymtat will be made uliori receipt of the invoices. The
cr erlrslie��t A rea3 to limit the Fial�llity c#'t:cler& Cotantotiio Tw, to the owneric ient
and to all a.avt9truuLtiOn cantracturs,and 5ubcontraotors on ttte pro*t arising from C,,)Ie
colsnTOW0,Inc.'s negligent sets,errors or attissions sttch tW tho total a eWe ii jUty
&Colanwntoi huo,,will not�accd ttie corjtr '�t mnounit.. It is �1@Y 1ItS,ACS 5t4r
C any balinces on this account remaining unpaid for a paxiod of 3o days will. Incur a
CA SE 12:40 COLER CC4_4NT&A[(j 4 :� 1;'" S542
service ch4e of 1-1/21%per month(expr d a$an a37 iwd pizroeutagc rate,the cllwge is
18%), It is furor agreed that, if said a�toutt is tumed vva for collecdon. reasonable
attomey's fees=d costs of collection shalt be added to the unpaid bales, whether or
tot legal action is ittstitut�d, Cole'& Wantortio;hic. re'wve.s the right to stop work on
dw project U invoices ozo not paid within 130 days of the dote of the iavoicc.
Prior to doing any work on the property,we reserve*w riot to psi a nolke of contract.
n�e pith" to this ooatraot speacelly agree that Gorr & Colantonio, Inc, has rio
obligation to releno drawiups or other documents utrtil the final bill for seMoos has been
By signing;this l er,you indicata your aec:ep anew of the uxms acid onditions contained
berein and you will give us authorization to pro=d with the scope of we&ideated.
Sincerely,
lol n C"°. C hessia,P,E,
Approved Bye Agin to and Accepted
for f is of Vayrnent.Ry:
i /f
02-01-19'96 01:44Pm FROM HATEM MAHOHE. TI-I G R 9542 P.C15
12:4,3 CCL;-:R 1-m-Wrof4lo � see Cge, 9--42 -
COLER&COLANTONIO,INC.
Mr, SCKPIDULE
NQv&w&,r C% 1993
Prir,6pal,Engijeer and sujv,:�Or
Division.Manager 10511V
Swveyor W/hn
S 5 5 - 70 ,
Lcvcl I Engineer 13-wanfist and Surveyor S 50-651ttr.
Levol 2 Engineer S,(5Ientt�3t and SLurvc`,Or
46. 551by,
svei len
2119ineer Sc- tiit and Santyor S 3 5 -4U/hr
Druftspetson
S 25 4,0/hp,
Support Staff
LAW OFFICES
127 TURNPIKE STREET
NORTH ANDOVER,MASSACHUSETTS 01845-5095
VICTOR L. HATEM (506) 665-3366
ALSO ADMITTED IN N.H. FAX: (506) 662-1712
JOSEPH V. MAHONEY
PETER L. HATEM
ALSO ADMITTED IN FLORIDA AND N.H.
February 6, 1996
Kathleen Colwell
Town Planner
Town Hall
Main Street
North Andover, Massachusetts 01845
Re: Lot 1, Dale Street (House #475)
Dear Kathleen:
The above referenced Application for Special Permit is
scheduled for this evening.
Due to the fact that Atty. Bard has not yet responded to my
response to his letter of January 2 , 1996 , I would request that
the matter be postponed until the March 5, 1996 meeting.
In addition, as promised earlier, I will be filing a amended
application which indicates that the correct date of the filing
of the preliminary plan application (Form B) was on December 26,
1984 . This is the reason that the Application for Special Permit
was under the 1984 Zoning By-Law.
Should you have any questions, please do not hesitate to
call.
Sincerely,
H tem, as attorney
f he October Lane Trust
PLH:p
ma rIH117l'I 1'1Hr11.jI'4r_7. I1_1 r.Lu,Ll.-,,
LAW WR
KF RFF`
—0" L HAI-EM
Ar�tj�ller,IN N H (508) 686006";_3
.a rsU P" V MAHONEY Mel 6B2.1712
'FIR L. HATEM
ADMIT'.*EL,IN PL-c-)RiEDA ANC)N H
February 1P96
Attorney Joel B. Bard
Kopeiman and Paige, P.C.
101 Arch Street FER
Boston , Massachusetts 02110-1137
A
BY FAX: ( 617 ) 951-2735 I
(3 110
?E: Lot:
"oar Attorney Bardi
Kathlepn Colwell, the Town Planner in North Andover, has
Deen generois enough to provide me a copy of your January 2 , 1996
letter, less certain information, which delineated the Town Of
North Andover's Position concerning Lot 1, Dale Street.
As your letter states, Lot 1 is located within the Coventry
Estates subdivision. The owner of the lot, my client, has
applied for a special permit to construct a single family
dwelling in the Watershed Protection District. The question
addressed in your letter is which version of the Town 's Zoning
Bylaw applies to this lot, the corrent bylaw or, that in effect at,
the i4me th& preliminary plan was filed with the Town December
26 , 1984 . In addition, your letter addressed what authority the
Board had to restrict construction or activity on the lot give,1
that the lot is entirely within 100 feet of a wetland.
Since the second issue is completely dependent on the first
I will address the assumptions made in your letter concerning the
applicable zoning bylaw.
On December 26, 1984 , a pre" iurinary plan was filed with the
Town Clerk's Office and the Planning Board concerning the
Coventry Estates subdivision. The definitive plan was approved
by the Planning Board on December. 16, 1985 and then endorsed by
the Board on March 24 , 1986 .
"s your letter correctly points out, in aQcordance with
Kn lchusetts General Law c . 40A, S. 6, land shown on an anrvnved
entitled to a 8-year "zoning freeze" heginninq fro
7-,,n(I-tsement gf the ,.eL-U
-jitive plan. Based on thp,a
Ing , us your letter coo rec:t,Y poitzts out Lot I
for eight (8) years by the zonicig in effect in 1984 , beginning
with endorsement on March 24 , 1986. Absent any extension, the 8-
year zoning freeze would have expired on March 24 , 1994 .
As you point out, the applicant's position is that the
zoning freeze has been extended by virtue of litigation affecting
this land which has lasted approximately four 14) years. The
assumption 2.n your letter is that the case which extended the
time is Jo- s Mahoney, Tru$te� . Paul Tariot et__al. (North
Andover Conservation Commission) , Essex Superior Court, C.A. No.
91-1522 .
The case was dismissed by the court by order. dated June 7 ,
1995 . However, this dismissal was at the request of the parties
since the parties had advised the court that the matter had been
settled.
The North Andover Conservation Commission on4une;7,:: ] 9gs„ ;
approved a fevised plan and settlement of the case.
As you observed, the language in the zoning .Act allows the
zoning freeze period to be extended for the length of l -Ligation
affecting tie lot, '�provded :final. adjudcatsor: is ;<zn favor of
the owner ;�asad lot, ” �nhis case, even though the case,; was
, ,
s ,e b u t thi f the aas wasan
o
ant e°
appr a xss� a o sina.o�s � he result
of an
Sun . ion: Court of :the; orignal,, }xder of
Conditions ba�k': n 1991 )
Far more importantly, however, is the status of the
ad�udzc t eaI.=°fzl;ed: by, the ,:TOW ch is
Back iri 199 Cab n the original wetlandr
application was filed with the North Andover Conservation
Commission, an appeal by the applicant was filed on March 21,
1991, to the Massachusetts Department of Environmental
Protection.
On June; 14, 1991, the Massachusetts Department of
Environmental Protection issued a Superseding Order of Conditions
effectively allowing the original plan to be built, overturning.
the original action of the North Andover Conservation Commission.
On June: 20, 1991, the Town of North Andover took an appeal
to an adjudicatory hearing with the Department of Environmental
Protection cloncerning the Superseding Order of Conditions.
Richard P. Doucette, Conservation Administrator for the Town, was
instrumental in this appeal.
This appeal is still pending.
Massachusetts General Law Chapter 40A, Section 6, st ;)tz—, as
follows
In the event any lot shown on the subdivision endorsed
by the planning board is the subject matter of Any
App.eal or any litigation, the exemptive provisions of
this section shall be extended for a period equal to
that from the date of filing of said--appeal or the
commencement of litigation, whichever is earlier to the
date of the final disposition thereof, provided final
adjudication is in favor of the owner of said lot.
It seems quite clear that the appeal of the Town of North
Andover of the original Superseding Order to a adjudicatory
hearing in the Massachusetts Department of Environmental
Protection glearly constitutes " . . .any appeal. . . " under MGL c.
40A, s . 6 .
As such, the exemptive provision of Section 6 of Chapter 40A
is applicable, providing extension from the date of the Town's
Filing on June 20, 1991 to this date, since no " . . .final
disposition thereof. . - " has been had and the appeal remains to he
heard in fr6nt of the Department of Environmental Protection .
As a practical matter, its seems clear that the Department
of Environmental Protection, which has already issued a
SupersedinglOrder of conditions on a far more intrusive plan than
the currentiplan already approved by the North Andover
Conservation Commission and now pending in from of the Planning
Board, will most likely approve the revised plan in favor of the
applicant at the adjudicatory hearing.
The practical consequence of the foregoing is that the
factual assumption underpinning your opinion by your letter dated
January 2, 1996 is simply incorrect.
I would urge you to review the additional facts, all. of
which are well known to the Town and to your office, since
Deborah A. �liason and Xathleen E. Connolly have appeared in the
I)EP docket �s representing the Town. On that basis I would
suggest that your opinion may need some revision.
In addition, I would request that you contact me at your
earliest convenience and we could discuss how best next to
proceed. 111ook forward to hearing from you.
Sincerely,
yr
e erti
PLB :tle
(11c: Kathieen Bradley Colwell
BY FAX: 688-9542
G208035
TOTAL P,0-3