18-20 CLARK STREET - BUILDING JACKET F18-20 CLARK STREET r t
f �
e Citp of fpalem, -A1ag!5aCbU9;ettg
$Department of j9ublic �berbite5
(One balem Oreen
(978) 745-9595 (Ext. 321
STANLEY I.BORNSTEIN,P.E.
City Engineer lax: (978) 745-5877
Director of Public Services
7-1-98
Mr. Walter Abraham
65 Valley St.
Salem Ma. 01970
RE: 18 Clark St. REGISTERED MAIL
Dear Mr. Abraham
In our letter to you dated 6-15-98 we indicated that what you have installed was
LTNACCEPTA13LE and "must be removed and replaced with a double catch basin connected to a
12" to 15" pipe". To date nothing has been done. Your removal of the existing drainage ditch
and installation of the unacceptable system has resulted in another flooding condition last
evening.
You must install an approved system immediately or return the site to its original condition. Our
crew spent time last night trying to unclog your system. You will be billed for this work and
future visits as required to keep the street from flooding.
This is our second and last request.
V
e 1. Ornstein P.E.
in of Public Services/ City Engineer
CC: Building Inspector
Mike Collins
A] Viselli
Joan Lovely
P. Alexander 12 Clark St.
Citp of balem, Alam6adjmattz
3Bepartment of Public :Fperbiceg
(One .4batem Oreen
(978) 745 9595 Ext. 321
STANLEY I.BORNSTEIN,P.E.
City Engineer -5877
Director of Public Services - -
6-15-98
Mr. Walter Abraham
65 Valley St.
Salem Ma. 01970
RE: 18 Clark St. REGISTERED MAIL
Dear Mr.Abraham
This morning we had an opportunity to inspect your drain line from the street to the rear of your
lot. Please be advised the work done is TOTALLY UNACCEPTABLE. What you have installed
has worsened the condition on Clark St. and must be removed and replaced with a double catch
basin connected to a pipe (12"to 15"in diameter) from the property line. (at the low point)to the
rear of you lot.
Please set up a meeting at this office to go over the required changes . The City will maintain the
pipe once it is correctly installed.
Ve yo
ey ein P.E.
ir. oh Public Services/City Engineer
CC: Kevin Goggin
Mike Collins
Al Viselli
0"w Ctv of �ttlem,'Boma of Auur�ApR Z 2 4'S ( f ']
DECISION ON THE PETITION OF WALTER ABRAHAM_REQUESTING A
VARIANCE FOR THE PROPERTY LOCATED ATS 8 & 20 CLARK STREET%(R-1)
A hearing on this petition was held March 20, 1996 with the following
Board Members present: Stephen Touchette, Chairman; Gary Barrett,
Nina Cohen, Joseph Ywuc and Arthur LeBrecque. Notice of the hearing
was sent to abutters and others and notices of the hearing were
properly published in the Salem Evening News in accordance with
Massachusetts General Laws Chapter 40A.
Petitioner, owner of the property, located at 18 & 20 Clark Street
request a Variance to subdivide lots to build two single family
homes.
The Variance which has been requested may be granted upon a finding
of the Board that:
a. Special conditions and circumstances exist which especially
affect the land, building or structure involved and which are not
generally affecting other lands, buildings or structures in the same
district.
b. Literal enforcement of the provisions of the Zoning Ordinance
would involve substantial hardship,financial or otherwise, to the
petitioner.
c. Desirable relief may be granted without substantial detriment to
the public good and without nullifying or substantially derogating
from the intent of the district or the purpose of the Ordinance.
The Board of Appeal, after careful consideration of the evidence
presented at the hearing, makes the following findings of facts:
1. Petitioner seeks a variance to subdivide a lot of 20, 995 square
feet into two lots. Petitioner proposes to build two single
family residences on the property, ease presenting 50 ft. of
frontage.
2. Petitioner's property abuts conservation land. He stated that
he presented his proposal to the City of Salem Conservation
Commission. Petitioner agreement with the City's Conservation
Commission is in the public record.
3. Due to drainage problems existing on that section of Clark
Street, the City Engineer received the owner's permission to
create an easement over the Abraham property to allow water to
drain from the street to the rear of the lot.
4. Four neighbors and abutters appeared in opposition to the
proposed variance, citing overcrowding on the street, inadequate
off-street parking conditions, and the anticipated continuation
or worsening of the existing drainage problem, which created
dangerous ice conditions during wintertime. These neighbors were:
David and Theresa Wong of 15 Clark St. , Donna Wilkins of 24 Clark
St. , Ed. Nyskowski of 12 Clark St.and Ralph Galvani of 21 Clark
St. Also appearing in opposition was John Donahue, Ward 3
Councillor.
DECISION: PF THE PETITInN ;.;ALTER ABRAHAJ,: =EQUESTING A VARIANCE
FOR THE PROPERTY LOCATED A- 13 S 20 CLARK c .EET R-11
cage u o
5 . Ward Councillor Leonard O' Leary appeared *n support of the
petitioner's petition.
On the basic of the above findings of fact, and on the evidence
presented at the hearings, the Board of Appeal concludes as follows :
1 . Special conditions do not exist which especially affect the
subject property and not the district in general .
2 . Literal enforcement of the provisions of the Zoning Ordinance
would 'not involve substantial hardship to the petitioner.
3 . The relief requested cannot be granted without substantial
detriment to the public good or without nullifying and
substa-ntially derogating from the intent of the district or
the purpose of the Ordinance.
Therefore, the Board of Appeal voted 3-2 in opposition to the motion
to grant the Variance, having failed to garner the required votes to
pass, the motion is defeated and the petition is denied.
Variance Denied
March 20, 1995 /1 ,�
Nina Cohen
Board of Appeal
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND
THE CITY CLERK
Appeal from this decision, if any, shall be made pursuant to Section
17 of the Massachusetts General Laws Chapter 40A, and shall be filed
within 20days after the date of filing of this decision in the
office of the City Clerk. Pursuant to Massachusetts General Laws
Chapter 40A,Section 11 , the Variance of Special Permit granted herein
shall not take effect until_ a copy of the decision bearing the
certification of the City Clerk that20 days have elapsed and no
appeal has been filed, or that, if such appeal has been filed, that
is has been dismissed or denied is recorded in the South Essex
Registry of Deeds and indexed under the name of the owner of record
or is recorded and noted on the owner's Certificate of Title.
Board of Appeal
y :gONDIT
CITY OF SALEM - MASSACHUSETTS
ROBERT A. LEDOUX Legal Department LEONARD F. FEMINO
City solicitor 93 Washington Street Awlstwt city solicitor
508&7453M Salem, Massachusetts 01970 508 921-19M
August 3 , 19952
Mr. Leo Tremblay
Building Inspector
One Salem Green
Salem, Massachusetts 01970
Re : Mr. Walter Abraham
Lots 115 and 116 Clark Street
Salem, Massachusetts
Dear Mr. Tremblay:
You have requested my opinion as to whether a variance granted
in 1967 on property known as Lot 115 and Lot 116 Clark Street is
still valid. My opinion follows .
Chapter 808 of the Action Resolves of 1975 spells out quite
clearly when there is a lapse in special permits and variances .
Massachusetts General Laws Chapter 808 Section 9 indicated zoning
ordnances or bylaws are required to specify a period of time not
exceeding two years in which the special permit will lapse unless
substantial use thereof has commenced.
The provisions on Chapter 808 also limit variances to one year
from the date of granting of a variance. If it is not exercised,
it expires .
In dealing with the issue of a variance granted prior to the
enactment of Chapter 808, it is necessary to determine whether the
variance has lapsed and/or whether the old variance, long
unexercised, may lose its force by reason of radically changed
conditions at the locus, including changes brought about by new
versions of the zoning ordnance or bylaw.
With all that having been said, it is my opinion that the
variance granted in 1967 is no longer valid by reason of the
failure of the petitioner to undertake to build in accordance with
the Board of Appeals decision. His failure to take affirmative
steps both prior to the adoption of Chapter 808 and subsequent to
the adoption of Chapter 808 results in a lapse and the variance is
no longer valid.
Ver ru r
ROB A. DO D*
OX
File #CS9443 . 05
��H.cowiilb
BOARD OF ASSESSORS 14 J,� Fl Ik . ;j.
- A 93 WASHINGTON STREET, CITY HALL. SALEM. MASSACHUSETTS 01970 16171 744-0660
4�t `81
PITY OF ULMm4ss,
May 7, 1987
Mrs. Josephine R. Fusco
City Clerk
City of Salem
Salem, MA 01970
Dear Mrs. Fusco:
Please be advised that vacant Assessors' Parcel #03-0107,
currently carrying the address of 18-20 Clark Street, will
be split into two lots on which each will have a single
family house. The house near to Highland Avenue shall have
the street address of 18 Clark Street, while the other shall
be 20 Clark Street.
t�ul yours,
Peter M. Caron
Chief Assessor
PMC:mjg
cc: Kenneth B. Cahill, Postmaster
Chief Joseph F. Sullivan, Fire Department
Margaret R. Hagerty, Principal Clerk, Water Dept.
,William H. Munroe, Inspector of Buildings
Engineering Dept. , City of Salem
Mr. Walter Abraham, 65 Valley St. , Salem, MA 01970
Cfitg of �ttlrm, Mali 0 ar4u,6 CM3
Public Propertg Department
'Builbing Department
(One 6alem (green
588-7,15-9595 Ext. 3d0
Leo E. Tremblay
Director of Public Property
Inspector of Building
Zoning Enforcement Officer
July 10 , 1995
Robert LeDoux
City Solicitor
City of Salem
Dear Mr. LeDoux:
Please review the enclosed documents as to a Variance
issued to Mr. Walter Abraham to erect a dwelling on lot
#115 and lot # 116 Clark Street .
Mr. Abraham contends that there was no lapse of time
as a condition given when the Variance was approved on
November 2 , 1967 for construction of two homes on the
property located at `18-4n Clark Street . He also states
that there was no lapse of time in the—State law when the
Variance was approved.
Mr . Abraham feels the Variance should still be in
affect and that he should be allowed to construct two new
homes per the Variance approved on November 2 , 1967 .
Please forward your decision in writing as soon as
possible .
Sincerely,
Leo E . Tremblay
Zoning Enforceme Officer
LET: scm
.�•CMLITN
L'l.if�1 of "2Hlelli, {ansuclluse##�
i
uuriD of 1_�'}1}lcul
Y"�nme NuvauUar 2, 1967
" DECISION ON PLTITIUN ()I' WALTLlt R. AIi1tA11AM 'rO ERECT
A DWELLING ON LOT #115 CLARK STREET, AND A DWELLING
ON LOT #116 CLARK STREL•'T.
Mr. Walter Abraham appealed to Lha Uu..111 ,i Appual uu Augubl 25, 1967
for a variance to erect dwellings un (.1—e juts since neither lot has
the frontage required by the City of Salem Zoning Ordinance . In his
petition he stated that when the lot. Ware purchased he and his sister
planned to build on both lots which aL thaL time had sufficient front-
age . Since then his sister has movud from this urea and for financial
_ reasons he wishes to sell one al' the lots .
A hearing was held on this pe III iun uu eh:t.,11)uI 1.6 , :I yoy _ All board mew-
bers were present at the hearing wh1c11 N.1J held purauaul. to notices
mailed postpaid to the petitioner, at)"'. l.u1-.� ! fsuaid Mumbe, s , and others ,
and notices published in the Evening Nuw:1 ..'t� ial.,tg of L111s petition.
The petitioner appeared and explalllu.t uby III 1.an saul.tl•1; a variance,
the same as in his written appeal. . No unu appeared In uppusltion.
'rhe Board after due consideratLuu LI1ur•:1'C ! vuL1119 un Ll,u gruuuds that
to deny the petition would cunse I,ardolIP Lu Lhe patlLtpner, and to
grant the appeal would not derogate groM Lhq iUt#Ut go :,:!plArpose of tale
Ordinance and would not be detrimental tp the puojilp voted un".
imously to grant this petition.
PETITION GIIANTEll �
JPAPPEAZAI
�
Secretary
11
N1'/IU Nf'RU
NI:Rol Ne RU
I
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7.5
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- GL:J (92✓L /'✓Z(/LC�CYfcC.P-!"""�-/1�G� �•�.[-C�/.d�-C--�L�vLP- -
Art. IX. S 9-5 SALEM ZONING ORDINANCE ADXMUSTRXT1=
(d) Rights authorized by a variance that are not (2) All streets and other reference marks;
exercised within one (1) year of the date of the (3) All outstanding topographical features;
grant of such variance shall lapse.
(4) All abutting lots, including the names and i
Sec. 9.6. Amendments. addresses of the present owners;
(a) The regulations,restrictions and boundaries (5) Any buildings or structures on the site and
set forth in this ordinance may from time to time on abutting properties within three hun-
be amended. supplemented, changed or repealed. dred (300) feet of the site; the first floor
provided, however, that no such action may be elevations of all building and/or structures
taken until after: shall be shown; and
1) The planning board has given appropriate (6) All easements or other restrictions on the
public notice and has held a public hearing, site.
according to the provisions of the General The plan shall be prepared by a registered land
Laws. Chapter 40A; surveyor, and his official stamp or seal shall be
?) The planning board has submitted a final affixed to the plan.
report with recommendations to the city (d) No proposed zoning ordinance amendment
council or until twenty-one (21) days shall which has been unfavorably acted upon by the
have elapsed after such hearing without the city council shall be considered by the city council
submission of such report; and within two (2) years after the date of such unfa-
(3) The city council or a committee designated vorable action, unless the adoption of such pro-
for the purpose has given appropriate public posed ordinance is recommended in the final re-
notice and held a public hearing, according port of the planning board.
to the provisions of the General-Laws, . 4
Chapter 40A. Sec. 9.7. Requirements for development
The city council may then adopt,reject or amend permit.
and adopt the proposed amendment,provided that, Any person acting in such a manner as to come
if the city council fails to act within ninety (90) within the definition of residential development
days after its hearing, it shall not act thereon use shall under this ordinance be required to apply
until after it holds a subsequent hearing with ap- for a development permit for this use from the
prooriate public notice. planning board.Said permit shall be granted after
the parcel under review has met the standards of
(b) Amendment of this ordinance shall not be- issuance for residential development contained
come effective except by the favorable vote of two- herein. If said application does not meet the stan-
thirds (2;3) of the members of the city council and dards for residential development contained
in accordance with the General Laws. Chapter herein, it shall be denied.
40A.
c) A descriptive plot plan shall accompany all Sec. 9.8. Procedure for development permit
petitions to amend this ordinance for the purpose application.
of changing the boundary lines of districts as (a) Preliminary application. Prior to a formal
shown on the zoning map. Such plan shall be filed application to the planning board for a develop-
with the city clerk, and a duplicate copy of such ment use permit,the developer may submit a pre-
plan shall be filled with the planning board. The ti
plan shall be drawn accurately,with ink on tracing liminary application to the planning department
cloth, at a scale (preferably at one (1) inch equals rsufficient detail so that the application can be
reviewed with respect to all standards set forth in
twenty (20) feet) sufficiently large to show clearly
re
the following data: section 9-9 of this article as to the availability of
municipal services and facilities and projected im-
(1) The metes and bounds of the site; provements scheduled in the capital improvements
56
t
1158 Maas. 474 NORTH EASTERN REPORTER. 2d SERIES
372,376,451 N.E.2d 734,(1963). 'It.follow, award raise issues (in different terms)
from this principle.(at least as far asthis which have already been decided. They
arbitration is concerned),that the injured seed.not be discussed.
party (F/D/C) could compel the contract .Judgment affirmed.
violator(the city)to assume,the defeoae of .
unliquidated claims brought against F/D/C „
by the phase IV subcontractors which were onr.ua,s snug -
mused by the city's breach. It,was open to,'
the arbitrators to conclude that the 'city
should have foreseen that its conduct -
would expose F/D/C to claims by its sub-
contractors."
ubcontractors." 19 MassAPp•399
[8.91 Indemnification here also carries 'Frank H. HOGAN et al.t
some benefit for the city because it permits - - V.
the city possibly to reduce :damages by Robert P. HAYESet sl!
successful defense or 'settlement of.,the
pending subcontractors' claims. These , ,.'Appeals Court of Massachusetts,
claims could not.have been liquidated by Norfolk:
the arbitrators because, at the conclusion Nov. 8, 1984.
of arbitration,most were still in litigation Argued
or awaiting arbitration: 'Importantly, the Decided.Feb. 22, 1985.
city has not been subjected-to a Potgntfai.
blank check on damages. •The.awaro Bio-
cumscribes the'city's ultimate liability,by ,Landowners brought administrative ac.
ntrec- dors,to stop construction on adjacent lot.
limiting indemnification only to subco
for claims"pending"at the.time the award Ater'administrative appeal board .denied
was made; see'note 8, supra. The,claims relief, landowners brought two lot,burt ac-
was
were identified, only Ne•tiaal''ainount due lions against owners of adjacent lot,build-
' on them was left unascertained.: Contin- ing inspector, city board'of appeals, and
Nor-
gent awards by arbitrators'are valid:,See Planning.board.
The Superior Nor-,
Trustees ojBoston db'Maine.Corp'. u,Mas- folk County,George N.Hurd,Jr.,J.,grant:
sashuseffs Bay Tmnap.A•uthy.,963'Mass.' ed summary judgment for all defendants,
386, 393, 294 N.E.2d 340'(1973): Th`the
• .and laudowne J•appealed.L (�eAppeals
failure of
-- - - - - demnity award;as-we read it''M light-o Cost,Want ..
arising building inspector to mike written m
contract,extends only,to the claims
out of the subconlracters'.contraets.and • sponse to landowners' written protest of
WK'elaims tihildmg
does not make the city liable for permit did not destroy landowner,'
ad
or damages. we conclude that the•indemadministrative appeals; (2)zoning variance
nification award was a permissible remedy •allowing division of lot previously enema,
within the broad scope.of the arbitrationpssatngboth adjacent lots, and allowing
provision. Other arguments by the city b'at7ding on vacant section,was suffic�4on
ly
seeking to set aside paragraph 5 of the and irrevocably exercised by the W
12. As we have noted. the issue of the paniee 1: Katherine A.Hogan,his wife.
liability to phase IV subcontriaors was before - or of -
the arbitrators. F/D/C claimed that the city's x; Mary A Its his wife•• the inspect is of
delay and other alleged default'made it iinpor Witdings of Duinn: the hoard of apPe
able for it to perform phase IV of the comma t`Mncy. and the planning board of Wenn'• As
and regtseRed all damages incurred as i'esuie tpdf"wd below, this action was comolidated
In addition, the city submitted the issue of witb'snother brought by the same plaintiffs and -
•F/D/Cs potential liability for liquidated daps- namieg as defendant only the board of aPPals
yes and extra costs im med.by the city in of Wincy.
negotiating subcontracts under the Iplhlte IV
contract.*
Masa: 1159
AM
! 1
HOGA,N v. HAYES i 1
cu.as
1]I N C)A I las Qtaa,.Arp 19371
and(3)building Permit was rendered Robert W Langlois• Wollaston, for de-
i by failure to satisfy subdivision on. •fendanta, KAPLAN and KASS,
,til.law. Before GRANT,
i
Reversed with leave tp defendants to JJ
supplement pleadings and Pr°Of• N,Judge.
KAPLA,
The Plaintifts Frank,and Katherine Ho-
gan own'a lot on it V&ate way in Quincy.
1. Ho-
Municipal dura f cit build g ins Roads and the two-story
Failure of city building inspector to y celled Patrick thereon. The
make written response, either voluntarily house and detached garage
or by,compulsion, to landowner's written lot is'rectangular, has an area of 5,000
protest to building Permit issued for adja- square.feet,and a width of 50 feet fronting
Is admin= The.defendants Robert and i
cent lot did not destroy on the way.
istrative appeal, even though inspectors' Mary')iayes own It contiguous lot, similar
to trig and area. and""'Ith a similar 50 .i
response was technically necessary volarly in shapC' the wa Their lot is
ger administrative review, P foot -frontage o° y.reegot(console-
since opposing parties did not make timely vacant. The object of the p
§§ T,8; Rules dgtedC action was to Prevent the Hayesea
objection. M.G.L.A.c.40A, i
Civ.P.roc.. Rule 12(hxl), 43A M.G.L.A} from'building on.their lot On cross mo-
lions'for summary judgment aided by a
2. Zoning and Planning s�549 facts, a judge of the
Under the former Zoning Enabling statemept of,agreed for all the -
-who-included, aside from Mr.
Act, a variance once 1a t limit of time
could defsupendants,
Court i ,.judgment.
continue in force without limit of time eF 8 d"MrS ftayee, the Quincy building in-
though not exercised. s I tar:ftle'board of appeals,and the plan•
3. Zoning and Planning am549 ning board• ' fen main issue, we, too,
Zoning variance,allowing landowner 60 aupport'the defendants.but there u a n af-
divide 'lot and to build on vacant'section, pI bort that stands in the way of an af• ,
granted under Prior Zoning Enabling Act, firmance,as will aPpesr'
_..-._ nd_irrevocably_exercised• ,We,-abbreviate the freta as far as feasi- -
- was'sntfieie. . i such that delay in 1949• Margaret Stanton and.herby he partition itself, ble.: BY b the entirety of
building did cause variance to laps eitii B husband .were oera combinedy area of 10,000
withstanding new Zoning Act, P .'both.lots, a..
agvare feet.with the house and gamge
for lapse if a variance i. a°40A. § 1 et 'square and.is frontage of 100 feet In
within one year. M.G.LA.
sea.; 10. April,•1974,after.the death of her husband,
Tied to the board of aP• i
av372.s Mrs: Stanton .applied allow her to divide
4. Zortng ane Planning peals for a vafsnre to
r
Building permit which was not preced- her pwnership so that she could sell ealnd - -_
ed be satisfaction of the subdivision concanning with the ellisthilf boom,and.garage,
law was invalid, notwithstanding endorse•. bofld'a small residence on the other lot.
board's "approval not required bu . waa need Sor a variance because the
permit. M.G: rovisioas then(and still)applicable
Ment after issuance of the P? zoning p Sed a mini- -
LA. c. 31, it,311'. inthis residential dreamt slice feet mini- i .
mum •lot siu.Irf,7, of 8i I
nam, lot frontage and width each
feet and minimum side yard depths of
Robert L. Marzelli, North Pembroke.-for
plaintiffs. St an one o4 she las in 191s and the
R Thr lots ,.cm originallr laid oat u pan of a o,hcr in 1949.
'plan recorded in 1902- By the late 1940's-the �ah<r in 1919.
Heo Int, cane to be separately owned. The i
1160 Mass. 474,NORTH EASTERN REPORTER. 2d SERIES ,
thirteen feet.4 On,a determination that;'a and amplified by the statement agreed
it ,
literal enforcement of the provisions of the. facts, asserted as a main pBroip odestromt
Zoning Ordinance would involve substantial . the rariance had "lapsed," emit If that
hardship to (Mrs. Stanton],".and so forth, the basis for the building pe then the
the hoard of appeals granted'a variance"to contention were to be rejected,
subdivide the premises ... and erect a sin -plaintiffs would assert that the permit was
gle-family dwelling on the vacant lot creat- invalid because it was not preceded by sat-
ed." Mrs.Stanton did not at that time ask 'isfaction of .the Subdivision Control w.
the planning board to give or dispense with ut nether,as we on may suppose,
by approval of oval
approval under the Subdivision Control' y and, further, that
Law. See Arripo v: Planning .Bd.�. of. . proval not required");
Franklin, 12 Mass.App. 802,;429 N.E.2d the necessary conditions did not exist for
355 0981). the endorsement given be the planning
In 1975 Mrs. Stanton sold the lot-with. board. Perhapsltofortify
o tiifoo July elves1pro-
house, and garage to the plaintiffs' predr '�'eedurally,
cessor in title. The-other lot remained commenced a second action in the Superior
vacant at the time.. Subsequentlyround
t shed Court aSe Attacking
"ingftoflthe boardly on the ofap-
fendants Robert and. Mary Hayes pur- of and, all of Jurie 24. 1983, which'had refused
chased that lot from Mrs. Stanton, pe ..
about that time,,on December 14, 1962, ' to disturb the allowance of the building
they applied to the building inspector fora, t
permit.
Th twond summattions e judgment can.
building permit for a one-story)single fami•
ly dwelling. The permit issued.on January,, pears to have been intended to dispose of
14, 19837. On April 7, 1993,the planning both actions!
board gave the-defendants an endorsement a possible _
of "approval not required" under the Sub - (11 I. There the defend nets c which
ion Control Law.
: - not raised
divisby eal.
The plaintiffs have attacked'in a number. Ahre to ng sof the case of rustrate ei'bkesplaintiffs'Atery li'
of ways.. On January 24, 1983,.ten days. .471, 479. 468
after the issuance uf�the building permit,. '(,Drell. hlr., 9 ), deci ed
they filed a written protdst with the build-, .cionN.Eb low,_2711 (19841;triggering
O er the r an
ing.inspector. Failing any response on his' application
below, the triggering ¢vent for he
part, the plaintiffs, on,February,28, 1983; application for administrative review of the
filed an administraiive appeal with the scrims of the building inspector plainould tiffs'
board of appeals. That board denied relief• written response by him to,the p
on June 24, 1983'. As earl),as Januarv.311., protests but in the present case y has
Against all 'compulsion. See G.L c. 40.1, H 7 & S.t
1963, however, the plaintiffs rad instituted' made no- such response voluntarily or -1
an action in the Superior Court 8g Rte think, however, that the plaintiffs can
the defendants named above. ,Ther com•
plaint,as finally amended on May, 11, 1983, escape this abyss. The defect.althoug
Won proposed b>' d 11'e read the notice id appeal os bring ad'
s. without the variance.the divI to the
manifets nt ---id hale Put'he Wilt-on lot in, dres,c,
of he lot area and main um . nominal lodgedconic lin tthe first .ted tartinnthough
frontage and width previsions.' There would be ht
cause a lot lice hoardingof the s he vacanard t lot WoV d sion b� T traveled Wore judicial recawe ithsoug u- be
run within four feet of the tan ling house- NIM Neulta, v. Building lrVpertor of Malborough.
1-un-in'a plan put the proposed house within 11 M31&uADp- 230, 235. 415 N.E2d 235 (19351.
ten feet of a lot line. McDonald's Corp.r.Seekonk, 12 MISS
153.42a N.E.2d 1136 139811.and note Do
n9uer
9m1n Co.v.Acting Bldg.Cwn„v,al Barran.369
S. The board.indioted that the'Ihpse'question. Mau.565.57J-515.id N.E._d
422(1983).
mentioned immediaich' below. would hate w .
be finally decided br the coun in the plaintiffs'
action commenced on January 31,'1983.
HOGAN V. HAVES, '',' , ',. Mass. 1161
Cut,as 4u,
H11
ad[in lst eo.ileal
nav be spoken of as "jurisdictional;" stroyed whg6ale by a retroactive applica-
spears not to be of.silch significance that a donof §-30;would appear quite drastic, .
,court must take notice.of it even if. the and hardly,matches the text of that provi• .i
opposing party fails.to press it,cf.MBss.R. sion:- A milder contention might take the
Gv.P, 12(h)(3), 365 Mase: 757 (1974)-(sub- form .that 1,;10 should extend to cancel
ject matter defect); rather,like a defect of variances,,granted well before the effective '
,
"personal" jurisdiction, it may be over- date of the new Statute,,which have not
looked if not timely objected to,cf.Mass.R.' been'exercised within a year after that
Civ-P. 12(h)(1), 365 Mass. 757 (1974). Ac- date, Even that proposition might,put a
cordingly, the plaintiffs' appeal,isnot de• great and insupportable strain on the statu-
stroyed and we consider iLr tory language. (See the reading of§ 30 in ;
121 2. On the main question of the knoll v.ZohingBdofAppeals ofNatick
claimed lapse of the rights granted hy.,the -12 Mass.App. 1002, 1004, 429 N.E.2d 353
variance, the plaintiffs would have to Con•- [1J811.)
cede that under the Zoning Enabling;Act .t31 But 4e need not and should not
which antedated the present Zoning.Act, attkmpt to rule'on the broad issue of retro-
G.L.c.40A(effective in Quincy on June 30, activity. WS areprepared to say that, so
. 19781,a variance once validly allowed could far'as § 30'may conceivably bear on the i
continue in force without limit of time al-, - past variance 6c,bar,there was a sufficient
though not exercised' Nor was a time exercise of it not late than the time when .
limit set on the instant variance, either by Mrs. Stanton.sold tie lot and buildings.to '
the ordinance or by the actual text of the the plaintiffe.piedeeessor in 1975. As in& ! 1
variance as allowed. The plaintiffs con- cated (see note 4;supra), the predecessor ?
tend, however,that the new statute.G.L c. at that poiht'(and indeed, the plaintiffs
40A, § 30, quoted in the margin,10 does today)would.be in multiple violation of the
establish a limit of one year, and that this zoning ordinance.were it not for the vari. -
(or possibly the policy expressed by it) ap ahce. So also,after disposing of the plain- ' -
plies not only to variances granted after tiffs' lot in Miance on the variance, Mrs.
the effective date of the statute,but retro- Stanton retained a lot which,except for the j
actively to variances granted theretofore. variance, could'not have been developed
The plaintiffs do not spell out convincingly' and would:have lost value. Even though
the extent or detail of this claimed,retroac- the!variance had not been fully carried out
.__ tivity, but they assert that the instant vagi,. ' bv�aetaelly-baijding,•7veytmk;p-was-suffi= -•---
ance, unexercised, as they claim, through •ciehtly, (and. irrevocably) exercised. Cf. -
1982 and beyond, was extinguished and D,fmitre.'Ciz imn: 138 NJSuper. 52,
could not furnish a lawful foundation'for. 591 350 A.7d..246 (App.Div.1975);. Hill
the building permit. Horpeomners Asan. v.Passaic, 156 NJSu-
The notion that variances more than one . per. 505,51$ 384'A.7d 172(App.Div.1978); -
year old,and remaining unexercised by;the Nuckfes d. Allek 250 S.C. 123, 130, 156,
effective date of the new statute, are de- S.E.2d 633,0967).'s Moreover, the plain- _
8. It mmv be obaenxd that the building inspector it. We decide that the exercise of rights herein
is joined in the present action and is aligned as would be sufficient to present a lapse of the
a defendant. - variance even on the pfaindffi hypothesized
'interpretation of§ 10. we do no attempt a .
9. See,however.the reference below m the possi- definftiorr of'exercise under § 10 in its pry -
ble supersession of an unexercised variance by spmive sense. Cf•Amoerr Brook Really Corp.
reason of a severe change of conditions, t•. Zoning Bd. of Appedr of Baume 14 Mast i
10. Session 10. " amended by St1977.,c. 829. ' App 76,436 NX-2d 978(1982). ,f
§ 41g, provides -if the rights authorized by a Unlike§ 10.1some sxashu8 provision have sac•
variance an not exercised within one year of ried 8efin1210,011 of use or carie. See Nat'v
the date of grant of such variance Ihgr shall Aunt 357 sold,1354. 1356(la•Ct.App.). writ
lapse, and may be reestablished only'aftcr no- denied; 359 So-2d 11307 (Ia.1978): In m 230
rice and a new'hearing pursuant to this seclion: Tenant,Corp n Board of Standard,d Appeals
I' � I
I
=—`�.�46--teas—awe..:. --n," ._,. _. _ _ _ ssf...raverr`•mnc
1162 Mass. 474 NORTH EASTERN REPORTER,-2d SERIES
tiffs' position is so,intrinsically inequitable although asserting that the planning
that it should not prevail. They take ad-' board's endorsement of "approval not re.
vantage of so much of the variance as )r- quired" was improper,the plaintiffs do not -
needed to enable.them to hold their proper,• provide any solid support for the assertion.
ty lawfully but seek at the same time-to. See Haynes,v. Grasso, 353 Mass. 731, 234
escape from its coincident burden upon . N.E.2d 877 (1968); Adams v. Board of
them. See Ellen M. Gifford'Sheltering Appeals of Concord, 356 Mass. 709, 255
Home Corp. v. Board.of Appeals of Way- N.E.2d 372(1970).
land 349 Mass. 292, 295, 208 N.E.2d 207. Having lost their point that.the variance
(1965); Skipjack Cove Marina, *Inc. ,u has. lapsed, the plaintiffs may see little
County Commra-for Cecil County, 252 profit in
Md. 440,450-452,250 A.2d 260(1969). Cf. Strictly, persisting with this litigation.
Selectmen o Stockbrid a .v. m- however, they are entitled to o
j g 'Jfonutnent 'reversal of this judgment, but with leave to
Inn, lna; 14 Mass.App:957, 9587959, 4134 the.defendants to supplement-their plead-
N.E.2d 365(1982). - ings and proof with respect to compliance
In holding that the.variance at bar did , with G.L.C. 41, § SlY(having reapplied so -
not lapse but on the contrary 'has been far as they may deem necessary to the
sufficiently availed of;we do not mein to building inspector or planning board to at.
reflect in any way upon'a possibility that, tain compliance);.the action to proceed fur-
an old variance,long unexerciaedi.may lose tb0 in the Superior Court as occasion may
its force by reason of radically changed require. -
conditions at the locus, including!changes So ordered
brought about by; revisions 'of a zoning
ordinance or by-law. See Dimiirou r. -
Carlson,supra; In n'Ambrosiov.Zoning o t.n.w,w tma
Bd of Appeals of ffunting(on, 196 Mise.
1005, 1008-1009,. 96 N.Y.S.2d 380 .(1949).,•
No such claim can be madehere: -
[4) 3. Like too many zoning eases,this
one is beset by a procedural difficulty,here 19 MassApp.392
arising upon the plaintiffs' objeetidn, ail- 'JULIUS TOFIAS & COMPANY, INC.
ready adverted to, thatIthe-issuance-of-the- -
building permit was not preceded by satis- V. -
faction of subdivision requirements, More JOHN B. STETSON COMPANY.
particulari', the plaintiffs point to G.L..c.. Appeals Court of Massachusetts,
41, § 81Y, par..2.(as appearing in St.1953.
Norfolk.
a 674, § 7), which states that a building
inspector may not issue his permit•"until Argued Oct. 16, 1984.
first satisfied that.the lot ... is not within Decided Feb. 22, 1985.
a subdivision,or that a way furnishing the '
access to such lot as required by Jhe subdi-
vision control law is shorn on a plan re- - Broker brought action against vendor
corded or entitled-to be�recorded under - of building to rernver-bcoker's commission
[§ 81X];' etc. We do not know on;what under exclusive brokerage contract con-
basis the building inspector acted: The• thining extension provision. The Superior -
planning board's "approval not required" Court, Norfolk County,John H: O'Neil, J.,
endorsement would be.a'proper basis, but entered judgment for vendor, and broker
that came too late for the purpose. The,. appealed. The Appeals Court,.Dreben, J.,
plaintiffs' grievance seems minor at'best:. field that broker was not required to be
01 Nev York 10) A.D.2d•53. 54, 474.N.YS.2d Attumum 76 Pa.Commw. 238, 242. 461 A.2d -
498(1984); M re Appeal of Nnrion Hacqueiball '596.(1983).
LAND COURT SURVEYS DEVELOPMENTS REGISTERED LAND SURVEYOR REGISTERED CIVIL ENGINEER
LOT SURVEYS CONSULTING
�y/zr PARSONS AND FAIA, INC.
civil Enginat2i andcSutveyoti
593-7927
480 LINCOLN AVENUE SAUGUS, MASS CHUSETTS
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LAND COURT SURVEYS DEVELOPMENTS REGISTERED LAND SURVEYOR REGISTERED CIVIL ENGINEER
LOT SURVEYS CONSULTING
PARSONS AND FAIA, INC.
w' 7-l2x' eivi� �n9fnaeas anc� csu¢veyo�s
593-7927
O LINCOLN AVENUE SAUGUS, MASSACH ETTS
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a
310 cNR 10.99 DEP F&No.
(ro be provided by DEP)
Form 2 Salem
CkY/ro"°
A�� a ter ra am
conioomrealth ���� 9/29/94
of xassachusetts
5 Determination of Applicability
Massachusetts Wetlands Protection Act, G.L. C. 131, 540
From Salem Conservation Commission issuing Authority
To Walter Abraham Same
(Name of Person making request) (Name of property owner)
Address 65 Valley Street Address Same
This determination is issued and delivered as follows:
❑ by hand delivery to person making request on (date)
® by certified mail, return receipt requested on October 20, 1994 (date)
Pursuant to the authority of G.L. c.131, 540, the r,.UM,r,S"o
bil -
has considered your request for a Determination of Applicability and its sup-
porting documentation, and has made the following determination (check whichever
is applicable) :
Location: street Address 18-20 Clark St---
Lot Number:
reaLotNumber• 115 & 116 (described as lot 107 at the Ac_seccnr'c nff;rP
This Determination is positive.
1. ❑ The area described below, which includes all/part of the area described
in your request, in an Area subject to Protection under the Act.
Therefore, any removing, filing, dredging. or altering of that area
requires the filing of a Notice of Intent.
2. ❑ The work described below, which includes all/part of the work described
in your request, to within an Area subject to Protection under the Act and
will remove, fill, dredge or alter that area. Therefore, said work
requires the filing of a Notice of Intent.
2-1
Effective 11/10/89
3. ❑ The work described below, which includes all/part of the work described
in your request, is within the Buffer Zone as defined in. the regulations,
and will alter an Area subject to Protection under the Act. Therefore,
said work requires the filing of a Notice of Intent.
This Determination is negative:
1. ❑ The area described in your request is not an Area subject to Protection
under the Act.
2. ❑ The work described in your request in within an Area Subject to Protection
under the Actbut will
alter that area.
Therefore, sai,d nfill,
d work doesrnot quire thefili gdredge, rof allotice of Intent-
3.
ntnt.3. ❑ The work described in your request is within the Buffer Zone, as defined
regulations,in the t to
ion
herefore
but
d work does not require uthecfifiling of atUnder
Notice
the Act.
Intent.
6. ❑ The area described in your request is Subject to Protection under the Act,
but since the work described therein meets the requirements for the
following exemption, as specified in the Act and the regulations, no
Notice of intent is required:
Issued by the Department of Environmental Protection
signature
day of 19 before me
pe this
personally appeared ' to me known to be the
person described in, and who executed, the foregoing instrument, and
acknowledged that he/she executed the same as his/her free act and deed.
Notary Public My commission Expires
This Superseding Determination does not relieve o the appiat iiicant This complyingSupersediwith sit thea plil abble fele ralfor
u
state or lot statutes, ordinances, by-
Laws
alid
three years from the date of issuance.
The applicant, the owner, any person aggrieved by the Superseding Determination, env owner of lard @butting the
ereby
lad upon which the proposed work is to be done, or any ten pert o G L. c.uant t 30A`410, providing�the rare equest
notified of their right to request an edjudicatory hearing pu
is made by certified mail or herd delivery to the Department, with the appropriate filing fee and fee
Traremittal Form as Provided in 310 CMR 10.03(7) within ten days from the date of issuance of of is Sipeersaeding
Determination, and is addressed to: Docket Clerk, office of General Counsel, Department
Protection, one winter Street, Boston, Out 02108. A copy of the request shall at the same time be sent by
certified nil or hard delivery to the conservation commission, the applicant, and any other party.
A Notice of Claim for an Adjudicatory Nearing shall comply with the Department's Rules for Adjudiutery
Proceedings, 310 CMR 1.01(6), aid shall contain the following information:
(a) the DEP wetlands File Number, rare of the applicant, and address of the Project;
(b) the complete name, address and telephone meaner of the party filing the request, and , if represented by
counsel, the mar and address of the attorney;
(c) the nems and addresses of all other parties, if known, _
(d) a clear and concise statement of (1) the facts whiew re specifically for P which it (2) the
objections
to be
to this Superseding Deteneinetion, including epee
inconsistent with the Department's mt&ds ft"u""Ons, (310 CNN 10.00) and <3) the relief sought through
the adjudicatory hearing, including specifically the changes desired in the Superseding Dotersinetfon;
(e) ■ statement that a copy of the request has beat sent to the applicant, the conservation cosmission and
each other party or representative of such party,
iknown.
Failure to submit all necessary may result in a dismissal by the Department of the Notice of Claim for an
Adjudicatory Hearing-
2-2B
�i'iL l.La, -- 6riLi I:GNS
1 ) . v citcn basin snail ne constructei prior to the initiation of
any activity of 18-20 Clark Street . The location of the catch
basin snall be determined in conjunction with the City Engineer .
2 ) . City Engineer snail make a determination whether the catch
basin is necessary.
* PLEASE NOTE THAT THIS REQUEST FOR A DETERMINATION OF APPLICABILITY IS A SECOND
STEP IN AN ATTEMPT TO FINALIZE HIS ORDER OF CONDITIONS WHICH EXPIRED AND WHICH
THE APPLICANT HAD RECEIVED A PARTIAL CERTIFICATE OF COMPLIANCE. THE PARTIAL .
CERTIFICATE OF COMPLIANCE WAS FOR THE FILLING PORTION OF TIR. ABRAHAM"S ORDER OF
CONDITIONS.
RON CALVANI
19 CLARK SI
SALEM,MA.
BUILDING DEPT.
µ
IC
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