This is an appeal under G.L. c.40A, §17 of a decision of the Defendant Board of Appeal upholding the Defendant Inspector's denial of a building permit for the construction of a 28,800 square foot building on property located at 19 and 41 Collins Street, Danvers.
Plaintiffs propose to construct the building in a zone designated Route 114/Center Street/Collins Street Area/Zone B ("Zone B") where it appears such building and use are permitted by right. The question, however, is not the building itself but the access thereto. Plaintiffs presently have two buildings on their property, one unoccupied, the other used as corporate offices and as a warehouse.
The access presently in use, and that proposed for the new building is by two routes. The first is off Collins Street and passes over property located in the Residence I District ("Res I"). The second crosses property located in the Route 114/Center Street/Collins Street Area/Zone A ("Zone A").
A portion of the Zoning By-law enacted in 1978 reads:
Access to and egress from land in a different district shall only be allowed if no alternate access to or egress from is available ... [and] (b) The width of the right of way is at least fifty-four (54) feet wide ... (c) The right of way is at least seventy-five (75) feet from the adjoining lot lines in the more restricted district [and] (d) Screened areas fifteen (15) feet wide shall be provided in the buffer area on both sides of the rightof-way.
Both means of access and egress, existed and were in use prior to 1978.
As Plaintiffs state in their memo in support of this Motion,
The use of Petitioner's protected access to serve its proposed building is not an alteration or extension of the protected access unless the proposed use differs (a) from the nature and use prevailing when the 1978 Danvers Zoning By-law took effect, or (b) from the quality or character as well as by the degree of the protected use, or (c) in kind from the effect of the protected use on the surroundingneighborhoods (citations omitted).
It appears that there will be an increase in use of the non-conforming access roads. The extent and effect of said use is questioned. Those are material facts and clearly in dispute.
Accordingly Plaintiffs motion for summary judgment must be and hereby is DENIED.
By the Court
RICHARD TATELMAN and MERRIMACK VALLEY DISTRIBUTING COMPANY, INC. vs. LESLIE A. ROY, ROBERT A. PARISEAU, JR., JAMES D. HARRINGTON, WILLIAM L. NICHOLSON, THOMAS L. GUIDI, EARL ALLISON, PATRICIA FRAIZER and ALBERT R. EDSON, as they constitute THE BOARD OF APPEALS OF THE TOWN OF DANVERS, and PETER A. BRYSON, as he is THE INSPECTOR OF BUILDINGS OF THE TOWN OF DANVERS.