Loading...
8406_FORM A - NORTH ST. - OKRONGLEY gyo� i 0 ' Kyv n�C1e� o�� 9 Town of:A aware 36 Main Street Agawam, Massachusetts 01001-1837 y Tel. 413-786-0400 Fax 413-786-9927 arEQ G� January 9, 2006 �-- `� . John F. O'Krongly o U'F) 863 North Street r Feeding Hills, MA 01030 Dear Mr. O'Krongly: At its duly called meeting held on January 5, 2006, the Agawam Planning Board voted to reject your plan of property on North Street, prepared by Ronald Huot and dated Dec., 2005 that was submitted under"Subdivision Control Law Not Required" as the legal frontage for the remaining land must be shown. If you have any questions, please contact this office at 786-0400, extension 283.' Sincerely, ?C.J ` Dennis B. Hopkins, Chairman AGAWAM PLANNING BOARD DBH/DSD:pre cc: Town Clerk File Anderson Associates Town Of Agawam 36 Main Street Agawam, Masxiac.husetts 01061.-1837 a Tel. 41.3-786-0400 Fax 413-786-9927 M FAX COVER SHEET Fax Number (413) 786-9927 Date: Ll q- D(p Originating Dept. X&i7l?e? g g P TO: Ko 1U7`� FROM. Number of Pages Including Cover Sheet.- COMMENTS: Fax transmissions are solely for municipal purposes. Any personal or political use prohibited bylaw., i PROCESS FOR APPROVING BUILDING LOTS L-AC—KING ADEQUA--T-E—FRONT-AGE Frequently a landowner wishes to create a building Iot which would not meet the minimum frontage requirement of the local zoning bylaw. As a Building Inspector, or member of a Planning Board or Zoning Board of Appeals, you have probably been asked by a local property owner what he or she must do to get approval for a building lot which does not meet the frontage requirement specified in the local zoning bylaw. In Seguin_ v. PIanning Board of Upton, 33 Mass. App. Ct. 374 (1992), the Massachusetts Appeals Court reviewed the process for approving building lots lacking the necessary frontage. The Seguin wished to divide their property into two lots for single family use. One lot had the required frontage on a paved public way. The other lot had 98.44 feet of frontage on the same public way. The Seguins applied for and were granted a variance from the 100 foot frontage requirement of the Upton Zoning Bylaw. Upon obtaining the variance, the Seguin submitted a plan to the Planning Board seeking the Board's endorsement that approval under the Subdivision Control Law was not required. The Planning Board denied endorsement on the ground that one of the lots shown on the plan lacked the frontage required by the Upton Zoning Bylaw. Rather than resubmitting the plan as a subdivision plan for approval by the Planning Board pursuant to Section 81U of the Subdivision Control Law, the Seguins appealed the Planning Board's denial of the ANR endorsement. Whether a plan requires approval or not rests with the definition of "subdivision" as found in MGL. Chapter 41, Section 81L. A "subdivision" is defined in Section 81L as the "division of a tract of land into two or more lots," but there is an exception to this definition. A division of land will not constitute a "subdivision" if, at the time it is made, every lot within the tract so divided has the required frontage on a certain type of way. MGL, Chapter 41, Section 81L states that a subdivision is: "the division of a tract of land into two or more lots...[except where] every lot within the tract so divided has frontage...of at least such distance as is then required by zoning...ordinance or bv- law if any—and if no distance is so required, such frontage shall be of at least twenty feet." 71 The only pertinent zoning requirement for determining whether a plan depicts a subdivision is frontage. The-Seguins-argued-that-the words"frontage...of-at.-least-such-distance-as-is-then required by zoning...by-law" should be read as referring to the 98.44 foot frontage allowed by the Zoning Board's variance, with the result that each lot shown on the plan had the required frontage. In making their argument that their plan was entitled to an ANR endorsement, the Seguins relied on previous court cases which had held that the required frontage requirement of the Subdivision Control Law is met when a special permit is granted approving a reduction in lot frontage from what is normally required in the zoning district. In Havnes v. Grasso, 353 Mass. 731 (1968), the court reviewed a zoning bylaw provision which had been adopted by the town of Needham. The bylaw empowered the Board of Appeals to grant special permits authorizing a reduction from the minimum lot area and frontage requirements of the bylaw. Before granting such special permits, the Board of Appeals had to make one of the following findings: a. Adjoining areas have been previously developed by the construction of buildings or structures on lots generally smaller than is prescribed by (the bylaw) and the standard of the neighborhood so established does not reasonably require a subdivision of the applicant's land into lots as large as (required by the bylaw). b. Lots as large as (required by the bylaw) would not be readily saleable and could not be economically or advantageously used for building purposes because of the proximity of the land to through ways bearing heavy traffic, or to a railroad, or because of other physical conditions or characteristics affecting it but not affecting generally the zoning district. The Board of Appeals granted a special permit which authorized the creation of two lots having less lot area and frontage than normally required by the zoning bylaw. On appeal, it was argued that the creation of the two lots was a matter within the jurisdiction of the Planning Board because the division of land creating lots lacking the necessary frontage was governed by the Subdivision Control Law. The court ruled that the Planning Board did not have jurisdiction as there was no subdivision of land requiring approval under the Subdivision Control Law. The court found that the requirement that each lot has frontage of at least such distance as required by the zoning bylaw was met by the granting of the special permit. The court further noted that this was not a variance from the zoning law but a special application of its terms. 72 The court reached the same conclusion in Adams v. Board of Apneals of Concord, 356 Mass. 709 (1970), where the Concord Zoning Bylaw authorized the Board of Appeals to approve garden apartment developments having less than the minimum frontage requirement of the bylaw. The court found that a lot, having less frontage than normally required by the zoning bylaw but which has been authorized by special permit, met the frontage requirement of the zoning bylaw and the Subdivision Control Law. Since the reduced frontage for the garden apartment plan had been approved by special permit, the Planning Board was authorized to endorse the plan approval not required. The distinction in the Seguin case was that the Seguins received a variance to create a lot lacking the frontage normally required by the zoning bylaw. The court found that a plan showing a Iot having less than the required frontage, even if the Zoning Board of Appeals had granted a frontage variance for the lot, was a subdivision plan which required approval under the Subdivision Control Law. In holding that the Sequins' plan was not entitled to an approval not required endorsement from the Planning Board, the court noted its previous decision in Arrigo v. Planning Board of Franklin, 12 Mass. App. Ct. 802 (1981). In that case, the court analyzed the authority of a Planning Board to waive strict compliance with the frontage requirement specified in the Subdivision Control Law. Landowners, in Arrigo, wished to create a building lot which would not meet the minimum lot frontage requirement of the zoning bylaw. The minimum lot frontage requirement was 200 feet, and the minimum lot area requirement was 40,000 square feet. They petitioned the Zoning Board of Appeals for a variance and presented the Board with a plan showing two lots, one with 5.3 nacres and 200 feet of frontage, and the other lot with 4.7 acres and 186.71 feet of frontage. The 'Board of Appeals granted a dimensional variance for the lot which had the deficient frontage. "-Upon obtaining the variance, the landowners applied to the Planning Board for approval of a plan showing the two lot subdivision. The Planning Board waived the 200 foot frontage requirement for the substandard lot pursuant to the Subdivision Control Law and approved the two lot subdivision. MGL, Chapter 41, Section 81R, authorizes a Planning Board to waive the minimum frontage requirement of the Subdivision Control Law provided the Planning Board determines that such waiver is in the public interest and not inconsistent with the intent and purpose of the Subdivision Control Law. As stated earlier, the minimum frontage requirement of the Subdivision Control Law is found in MGL, Chapter 41, Section 81 L, which states that the lot frontage is the same as is specified in the local zoning bylaw, or 20 feet in those cases where the Iocal zoning bylaw does not specify a minimum Iot frontage. In deciding the Arrigo case, the Massachusetts Appeals Court had the opportunity to comment on the fact that the Planning Board and the Zoning Board of Appeals are faced with different statutory responsibilities when considering the question of creating a building lot lacking minimum Iot frontage. Although MGL, Chapter 41, Section 81R gives the Planning Board the 73 authority to waive the frontage requirement for the purposes of the Subdivision Control Law, the court stressed that the authority of the Planning_$oardto waive_frontage_requirements pursuant to 81R should not be construed as authorizing the Planning Board to grant zoning variances. The court noted that there is indeed a significance between the granting of a variance for the purposes of the Zoning Act and approval of a subdivision plan pursuant to the Subdivision Control Law. On this point, the court summarized the necessary approvals in order to create a building Iot lacking minimum lot frontage. In short, then, persons in the position of the Mercers, seeking to make two building lots from a parcel lacking adequate frontage, are required to obtain two independent approvals: one from the planning board, which may in its discretion waive the frontage requirement under the criteria for waiver set out in G.L. c. 41, s. 81R, and one from the board of appeals, which may vary the frontage requirement only under the highly restrictive criteria of G.L. c. 40A, s. 10. The approvals serve different purposes, one to give marketability to the lots through recordation, the other to enable the lots to be built upon. The action of neither board should, in our view, bind the other, particularly as their actions are based on different statutory criteria. Absent a zoning bylaw provision authorizing a reduction in lot frontage by way of the special permit process, an owner of land wishing to create a building Iot which will have Iess than the required lot frontage needs to obtain approval from both the Zoning Board of Appeals and the Planning Board. A zoning variance from the Zoning Board of Appeals varying the Iot frontage requirement is necessary in order that the lot may be built upon for zoning purposes. It is'also necessary that the lot owner obtain a frontage waiver from the Planning Board for the purposes of the Subdivision Control Law. In the Araso case, the landowners had submitted a subdivision plan to the Planning Board. The court noted that without obtaining the frontage waiver the plan was not entitled to approval as a matter of law because, although it may have complied with the Planning Board's rules and regulations, it did not comply with the frontage requirements of the Subdivision Control Law. After the Arriso decision, it was debatable as to the process a landowner had to follow in obtaining a frontage waiver from the Planning Board. Rather than submitting a subdivision plan, another view was that a landowner could submit a plan seeking an approval not required endorsement from the Planning Board and at the same time petition the Board for a frontage waiver pursuant to 81R. If the Planning Board granted the frontage waiver and noted such waiver on the plan, then the Board could endorse the plan approval not required. _ 74 The Seguin case leaves no doubt as to the process that must be followed when a landowner seeks a frontage waiver from the Planning Board. If a lot shown on a plan lacks the frontage required by the zoning bylaw, then the plan shows a subdivision and must be reviewed under the approval procedure specified in Section 81U of the Subdivision Control Law. The Planning Board must hold a public hearing before determining whether a frontage waiver is in the public interest and not inconsistent with the Subdivision Control Law. A notation that a frontage waiver has been granted by the Planning Board should either be shown on the plan or on a separate instrument attached to the plan with reference to such instrument shown on the plan. It is unclear whether a Planning Board must allow the Board of Health 45 days to comment on the plan when the only issue before the Planning Board is the frontage waiver. We would recommend that Planning Boards consider amending their rules and regulations providing for a shorter review period when a landowner is only seeking a frontage waiver from the Planning Board. A Planning Board may also want to specify a fee and any relevant information that should be submitted with the plan. In determining whether to grant a frontage waiver, a Planning Board should consider if the frontage is too narrow to permit easy access or if the access from the frontage to the buildable portion of the lot is by a strip of land too narrow or winding to permit easy access. In the Seguin case, the court noted that the lot appeared to present no problem and indicated that the Planning Board would be acting unreasonably if the Seguin submitted a subdivision plan and the Board did not approve the plan. i 75 MISCELLANEOUS COURT DECISIONS Goldman v. Planning Board of Burlington, 347 Mass. 320 (1964) (anr endorsement of a plan does not obligate a planning board to endorse a later plan showing the same lots and the same frontage). Devine v. Town Clerk of Plymouth, 3 Mass. App. Ct. 700 (1975) (where clerk of the planning board, who clearly had authority to accept am plan for the board, for some unexplained reason, returned the am plan to the petitioner which resulted in a constructive grant). Lynch v. Planning Board of Groton, 4 Mass. App. Ct. 781 (1976) (planning board failure to act on an am plan within 14 [now 21] days entitled petitioner to such endorsement and board's determination thereafter that the plan did require approval was without legal effect). Landgraf v. Building Commissioner of Springfield, 4 Mass. App. Ct. 840 (1976) (lots shown on a definitive plan which had frontage on a public way were entitled to the zoning protection afforded subdivision plan lots). Kelly v. Planning Board of Dennis, 6 Mass. App. Ct. 24 (1978) (where planning board failed to meet notice requirement of open meeting law when voting to deny am plan). Korkuch v. Planning Board of Eastham, 26 Mass. App. Ct. 307 (1988) (developer who submitted an am plan but did not give immediate or very prompt written notice of the submission to the town clerk was not entitled to endorsement of his plan or a certificate to that effect from the town clerk when the planning board failed to act within 14 (now 21] days of the submission). J & R Investment. Inc. v. City Clerk of New Bedford, 28 Mass. App. Ct. 1 (1989) (mandamus is the appropriate remedy and owner's delay of 25 days between clerk's refusal to issue certificate endorsing owner's plan of land and owner's commencement of suit seeking mandamus relief was not unreasonable delay, and thus mandamus was available). 76 J. & R. Investment, Inc. v. City Clerk of New Bedford, 29 Mass. App. Ct. 1 (1989) (whether a board acted within the allowable time period will depend on whether reasonable persons examining_the_formal_record_could_ascertain_that_a_particular action-was-taken). F 77 Date: 12)2W005 To the Department Officer making the Payment:" Received of Anderson Associates 35.00 the sum of 35.00 Dollars for the Form A Fee ending 12/28/2005 for collections as per schedule of this date, filed in my office. " ,,,Y A"-J, reasure TOWN OF AGAWAM INTEROFFICEa �M MEMORANDUM To: Planning Board CC: File From: Engineering Date: January 4,2006 Subject: Form A 275 - 863 North Street - O'Krongley As per your request dated December 28,2005,we have reviewed the Form A entitled, "Plan of Property in Agawam,MA; Prepared for:John F.O' Krongley,863 North Street,Agawam, MA; Prepared by: Anderson Associates,375 Walnut Street Ext.,P.O. Box 382,Agawam, MA 01001; Scale: 1"=60'; Date: Dec., 2005". This plan is missing some survey data. On January 4,2006,a member of Engineering spoke with Ron Huot from Anderson Associates. Mr.Huot conveyed the correct survey data to Engineering,and also said that this data would be included on the mylars for the subject site when submitted. The lot closure is acceptable. In order to determine if this change would create a non-conforming lot,the plan should depict the available frontage for the parcel which will receive the additional area. This will facilitate the Planning Board's review. If you have any comments or questions, please do not hesitate to contact our division. Sincerely, l 1 Rick S. Seidnitzer Georganne J. oy/mfin, P.E. Civil Engineer I �Towp Engin r TOWN OF AGAWAM °�'�°gip 9 � 3 1 .4. 4% INTEROFFICE D MEMORANDUM To: Planning Board CC: File From: Engineering Date: January 4, 2006 Subject: Form A 275 - 863 North Street - O'Krongley As per your request dated December 28, 2005, we have reviewed the Form A entitled, "Plan of Property in Agawam, MA; Prepared for: John F. O'Krongley, 863 North Street, Agawam, MA; Prepared by: Anderson Associates, 375 Walnut Street Ext., P.O. Box 382, Agawam, MA 01001; Scale: 1"=60' ; Date: Dec., 2005". This plan is missing some survey data. On January 4, 2006 a member of Engineering spoke with Ron Huot from Anderson Associates. Mr. Huot conveyed the correct survey data to Engineering and also said that this data would be included on the mylars for the subject site when submitted. If you have any comments or questions, please do not hesitate to contact our division. Sincerely, P,k 14 Rick S. Seidnitzer Ge6rgannl J. Hoy nan, P.E. Civil Engineer I Town Ern/gineer y S:1FOF-MA1275 863 north st.-o'krong1ey\01.wpd T o- w' 'n .of Agawam ' 36 ;NIa1ntreet Agawam, Massachusetts 01001-1837 RtID ORk.'.. Tel. 41.3-786-0400 Fax 413-786-9927 FORM A Application for Endorsement Qf Plan Not Believed to Require,Approval FILE ONE COMPLETED FORM WITH THE PLANNING BOARD AND ONE COPY WITH THE TOWN CLERK IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION 11-B Agawam, MA 'DiEC , Z 7 _ 20 ©-S TO THE PLANNING BOARD: ` r-5 The undersigned, believing that the accompanying plan of his property in the Town;of Agawam does not constitute a subdivision within the meaning of the Subdivision Control- Law, herewith submits said plan for a determination and endorsement that Planning:n �, Ln Board approval under the Subdivision Control Law is not required. �� un rn 1. Name of Applicant cad UA/ Address 3Cod Cl02? S71Q19.E7" 2. Name of Surveyor Pool lu P_. 14UO-T t?lyD&t 04 eq c. 7-6-S Address 37S Wg9WOT -fir', Rxr.. 0 GAcepAM yW6 • 6160/ 3. Deed of Property Recorded in 144mgA E _ (�'ouwr y Book 53cf Page 3P/ 4. Location of Property _ mil Se,_f M S'111E aF �o�Gll 5i. }}�da4�? 5. Describe the proposal in this submission: E uZ 4 dE?H 5). at Lh o g P44A.c.E L ,ATZ) z 1-07J RF=A ti ,PRQ c F� 7'a J3.E ATTACHMENTS - =�T o originals and three copies of plan by certified land luu veyor. Filin Fee - $35.00. Sig ot�°re OOwner Address 463 i4o�N 59 �� �Q05 � _ F� 1�ius r�.� • M 10-a Q Town of Agawam 36 Main Street . Agawam, Massachusetts 01001-1837 Tel. 413-786-0400 Fax 413-786-9927 - ATED MEMO TO: Building Inspector& Engineering Dept. FROM: Planning Board SUBJECT: Form A - North Street - O'Krongley DATE: December 28, 2005 Please review and comment on the attached Form A for O'Krongley on North Street prior to the Board's January 5" meeting. Thank you. :pre "Town of Agawam 36 Main Street Agawam, Massachusetts 01001-1837 � �MP Tel. 413-786-0400 Fax 413-786-9927 a 4� ri - LJ February 2, 2006 1' (j) o John F. O'Krongly 863 North Street Feeding Hills, MA 01030 Dear Mr. O'Krongly: At its duly called meeting held on February 2, 2006, the Agawam Planning Board voted to approve your plans under "Subdivision Control Law Not Required" for a parcel of land located on North Street. Plans drawn by Ronald Huot and dated Dec. 2005, revised 1/26/06. Sincerely, A WAM PLANN BOARD (+A Please be advised that failure to record the plan within six (6) inonths and provide proof of. recording will negate the action of the Board Detach on dotted line and return to the Agawam Planning Board, 36 Main Street, Agawam, MA 011001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I . . . . . . . . . . To Agawam Planning Board Please be advised that the Form A plan that was filed by O'Krongly and approved by the Agawam Planning Board for a parcel of land located on North Street has been recorded at the Hampden County Registry of Deeds. Book ,.Page Signature of Applicant r r STATE PAF? C � Louise Albright D-17119 P.177 LOCUS s LEASA Nr rw J 1A NOR t� 1 John F. O'Krongly M ,�GrrTrc wh p `may. Ssr D 10058 P.88 40 fOR0 HALM KLLl OGiG-l?R `n4Rl.NCETOI` � �0 ICtiR DRh� £vc3 Q w C4L41MBIAFIDR , sFr�� o y �� �Q SOC � f � John F, OKran i y w w tc ' 9 D.11476 P-156 Feedingx t i,tl_ 4.5 Acres a Not a BuildingLot � �. � f S. �" x, LOCUS MAP John L. Cfark D.14223 P.50 Qj S10°08'23"W S10'08'23"W — — — s.s 207,45' 681.65' Exist. Garage 43 8g jo o Parcel A rV Realdenc 19,839 s.f. r\ � z Parcel B qj to 208,51' 91.49' 127,651 s.f. 1 2.93 Acres rn Lo S10'08'23"W 300.00' To become par t of O other land of John F. O'Kronkly CV Not a Building Lot Not Nancy Robichaud '� O D.7537 P.98 C ai Z o {o U � 585.21' fi>� S10°08'23"W - � U a` O } Lind J. Vincze D.5395 P.351 Marlene Hanchuk D.8617 P.31 Robert Dianne George Lovett D.4406 PA07 D-4326 P.265 Nina Panchur Thomas Garvin D.14375 P.529 D.12972 P-545 E L I Z A B E T H S T R E E T Lu LJJ C C'. Li T 0 M S T. o .14N coos GRAPHIC SCALE This plan prepared in accordance sa o 30 so 120 240 with the rules and regulations of the Registry of Deeds This plan does not constitute a f 2 subdivision therefore approval IN FEET ) Date under the Subdivision Control i inch = 80 ft. g Law is not required, Date cJ �Cb�P PLAN OF PROPERTY N Agawam Planning Board DRAWN BY: Note: Planning Board approval does not constitute compliance A A WA , M A DRAWING # with zoning. of John F. O'kron g! y 863 North Street Agawam , MA ANDERSON ASS❑CIATES 375 WALNUT STREET EXT, P,❑, BOX 382 AGAWAM, MA 01001 Land Surveyor Land Planning Consultant 1 1 26 06 Planning Board notes RRH NO. DATE DESCRIPTION 8Y SCALE: 1 " = 6O' DATE:Dec., 2005 Town of Agawam ' 36 Main Street Agawam, Massachusetts 01001-1837 Tel. 413-786-0400 Fax 413-786-9927 ATE February 2, 2006 John F. O'Krongly 863 North Street Feeding Hills, MA 01030 Dear Mr. O'Krongly: At its duly called meeting held on February 2, 2006, the Agawam Planning Board voted to approve your plans under "Subdivision Control Law Not Required" for a parcel of land located on North Street. Plans drawn by Ronald Huot and dated Dec. 2005, revised 1/26/06. Sincerely, A WAM PLANN BOARD Please be advised that failure to record the plan within six(6) months and provide proof of. recording will negate the action of the Board. Detach on dotted line and return to the Agawam Planning Board, 36 Main Street, Agawam, MA 011001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . To Agawam Planning Board Please be advised that the Form A plan that was filed by O'Krongly and approved by the Agawam Planning Board for a parcel of land located on North Street has been recorded at the Hampden County Reg' of Deeds. Bo k 3 4l —, Page P3 oq- i-/-a(- Signature of Applicant