Loading...
HomeMy WebLinkAboutAPPEAL n COMMONWEALTH OF MASSACHUSETTS E EX, ss. LAND COURT C 3 ��� J No. B-EfiT AZIN C. OSGOOD and ) HARRIET G. OSGOOD, TRUSTEES ) OF ABBOTT STREET TRUST, ) Plaintiffs ) COMPLAINT V. ) TOWN OF NORTH ANDOVER ) PLANNING BOARD, ) Defendant ) INTRODUCTION 1 . This is an appeal, pursuant to G. L. c. 41 , §81BB, of a decision of the Town of North Andover Planning Board (the "Board" ) dated June 13, 1988 and filed with the Town Clerk on June 13, 1988 relative to a modification of a subdivision shown on a plan entitled "Definitive Subdivision Modification 'Abbott Village Estates ' Located In North Andover, Massachusetts" , dated October 23, 1987, and prepared by Thomas E . Neve Associates, Inc. (the "Plan" ) . PARTIES 2 . The plaintiffs, Benjamin C . Osgood and Harriet G. Osgood, Trustee of Abbott Street Trust, are the owners of the property which is shown on the Plan and have a usual place of business in North Andover, Massachusetts. 3. The defendant is the Town of North Andover Planning Board with offices at Town Hall , North Andover, Massachusetts. FACTS 4 . The plaintiff is the owner of a parcel of land consisting of approximately 49 acres located beyond the limit of the constructed ways of Abbott Street and Salem Street in North Andover, Massachusetts ( the "Property" ) . 5 . Plaintiff submitted to the Board an application for approval of a definitive subdivision plan for the Property on The application was approved with conditions on The conditions included a requirement tha t one of the subdivision roadways, Thistle Road, be connected to an existing dead-end street in the abutting subdivision, using an easement shown on the approved subdivision plan of the abutting subdivision. 6 . The Board's December 2 , 1985 approval was appealed to Superior Court pursuant to G. L. c . 41 , §81BB by abutters to the Property in two separate actions . In one of the actions, Essex Superior Court civil action the Superior Court ruled that there was no valid easement available to connect Thistle Road with the dead-end street in the abutting subdivision. The validity of this determination by the Superior Court is the subject of a pending appeal in the Appeals Court . -2- 7. In order to address the problem presented by the appeal of the December 2 , 1985 approval , on °° "` plaintiff submitted to the Board an application for approval of a modification of the definitive subdivision plan for the Property along with the 10000 OW The new Plan eliminated the connection to an existing street over the contested easement and added a cul-de-sac at the end of Thistle Road. 8 . The failure of the Board to file a certificate of final action with respect to the application and Plan submitted on October 30, 1987 within the reduired time resulted in constructive approval of the application and Plan pursuant to G. L.c . 41, 9810. The Plan has been so endorsed by the Town Clerk and the Plan has been recorded in the Essex County Registry of Deeds . 4 W Following the constructive approval and recording of the Plan, the plaintiffs granted two mortgages to the Vanguard Savings Bank covering all the lots in the subdivision, with the exception of lots already on an existing public way, in good faith and for valuable consideration to secure loans for construction V' of the subdivision improvements as shown on the Plan. The mortgages were recorded in the Essex County North Registry of Deeds on April 8 , 1988 as instrument nos . 7555 and 7556. -3- 4 10. Notwithstanding the constructive approval of the Plan and the mortgaging of the lots shown thereon, on « the Planning Board advertised notice of a public hearing the purpose of which was to modify the approved Plan by the imposition of conditions . 11 . On �� the Planning Board held a hearing pursuant to G. L.c . 41, §81W, and on &solo/ voted to modify the approved Plan by imposing certain conditions . The Planning Board signed and filed with the Town Clerk a written decision on A copy of the decision, certified by the Town Clerk , is attached hereto as Exhibit A. 12 . The decision of the Board was arbitrary and 1 capricious and exceeded the Board 's authority in that the Board has no authority to impose any conditions on a definitive subdivision plan or modification thereof which has been constructively approved pursuant to G.L. c . 41 , §$1U. 13. The Board further exceeded its authority in imposing several of the conditions notwithstanding the constructive approval, including , without limitation, the conditions in the paragraphs numbered 2 .a-e, 3 , 5.a-d, 7 , 8 and 9 , and the following numbered paragraphs for conditions to be placed on the Plan: 1 , 8 , 9 , 10 , 11, 12, 16, 18 , 19 and 20. -4- 14 . The conditions imposed by the Board are invalid as they either pertain to matters which are not add,ressed in th� Board 's Rules and Regulations or are specifically authorized in the Board 's Rules and Regulations. 15. The conditions imposed by the Board are invalid as they pertain to matters beyondhr Bcard ',s. jurisdiction under the Subdivision Control Law . 16. The Board further exceeded its authority by purporting to affect lots by its m9,oi f i c a t i without thou t obtaining the consent of the mortgagee of the affected lots. 17 . The Plaintiff is aggrieved by the decision of the Board. WHEREFORE, the Plaintiff requests : 1 . That the Court hear the evidence and annul the Board 's decision dated June 13, 1988 modifying the Plan, and 2 . Such other relief as the Court deems just. BENJAMIN C. OSGOOD and HARRIET G. OSGOOD, TRUSTEES OF ABBOTT STREET TRUST By their attorneys, Ile J-5-11an- j ostiK -.",D'W e 6i Howard P. S6e, icher , Davis, Malm & D'Agostine One Boston Place Boston, MA 02108 Dated: June 29 , 1988 ( 617) 367-2500 -5-