156_Derby_Statement of HardshipSTATEMENT OF GROUNDS FOR ZONING RELIEF
FOR 152-156 DERBY STREET
Petitioner and Owner Demetra Karlis, Trustee, hereby petitions for variances from the on-site parking requirements of Section 5.1.8 and Condition #8 of the 2013 Decision requiring lease
of 3 off-site parking spaces, as follow:
to allow her or her successors in title to continue to use and occupy the property as a restaurant and two apartments upstairs with no on-site parking spaces, and
to vary and rescind Condition #8 included in the Dec. 30, 2013 Special Permit, which require her to lease 3 off-street parking spaces for use of the 2 dwelling units upstairs.
THE RELEVANT HISTORY SUPPORTING THIS PETITION FOR THESE PARKING VARIANCES
On January 21, 2004, the Board approved a special permit allowing the owner to enlarge this non-conforming building by constructing a first-floor addition, and variances from several
dimensional requirements, which enabled the owner to construct a first-floor addition 26’ by 28’ along Derby Street to enlarge the seating capacity of his restaurant from 33 seats to
68 seats. As noted by that Board, this effectively covered most of the lot, thus eliminating the owner’s ability to provide on-site parking. The Board addressed this problem by including
Condition # 8 in its Decision that required the owner to “provide valet parking during the evening hours of Thursdays, Friday, and Saturday, which will be subject to further review
by the Zoning Board of Appeals.”
About 10 years later, on December 30, 2013, the Board approved another special permit to allow the owner to add a third-floor apartment and an outside stairway at the rear. The Board
also approved a variance from the requirement that all parking spaces be on the same lot as the building or use which they were intended to serve. As a condition of its approval of
the variance allowing parking to be provided off-site, the Board included Condition #8 of its Decision requiring that
“Petitioner will provide proof of a current lease to the Zoning Enforcement Officer of three off-street parking spaces, to be renewed as necessary. Petitioner will report on the leases
at 5-year intervals from the execution of the first lease. Failure to file a current lease for 3 parking spaces within a reasonable distance of the residential units will result in
a mandatory appearance before the Board of Appeals for review and potential revocation of approval.”
For 10 years, the petitioner was able to satisfy this condition by leasing 3 off-street parking spaces for 10 years from “Captain Dusty’s” Ice Cream Shop right across the street at 143
Derby Street.
Since 2013, the neighborhood has absorbed additional residential development which has had the effect of reducing off-street spaces available for rent, and particularly the residential
redevelopment of the “Captain Dusty’s” property at 143 Derby Street, where no parking spaces are now available for rent or lease.
The Petitioner has made a diligent inquiry but has not been able to locate any off-street parking spaces for lease within a reasonable distance of the property.
These conditions and the unique leasing requirement for off-site parking are, to the best of our knowledge, unique to the petitioner’s property and not to the zoning district generally,
and the continued enforcement of these conditions which seemed reasonable 10 years ago, but are not possible now, create a hardship to the petitioner who has recently lost the opportunity
to sell the property to an active restauranteur who originally offered but withdrew specifically because of the uncertainty created by this off-street parking requirement.
Because the City controls on-street parking by issuance of resident parking passes to neighborhood residents, the relief sought can be granted without nullifying or derogating from the
intent and purposes of the Zoning Ordinances.
The GROUNDS FOR THIS PETITION ARE:
The relevant circumstances and conditions, including the size of the structure, the location of the structure on the lot, the lack of available off-street parking spaces to lease within
the neighborhood, and the fact that the expansion of the structure on the property were legally allowed by ZBA Decisions in 2003 And 2013, neither of which required on-site parking.
While one or another of these circumstances may affect some other properties in the neighborhood, the cumulative effect of all these factors on the petitioner’s property are unique and
constitute a hardship, financial and otherwise for the owner if the current parking provisions of the Ordinance or Condition #* of the 2013 Decision are enforced.
The potential effects of enforcing the condition #8 now could result in the revocation of approvals of the 2013 Decision, which could require the removal of the restaurant addition,
removal of the third-floor apartment and the access/egress stairway legally required to serve it, and the dispossession of residential tenants, and the loss of two
otherwise legal apartments at a time when Salem badly needs additional housing for its citizens.
Such enforcement actions would be disastrous for the petitioner, financially and otherwise, and would be very unfair considering the owner’s history of acting in good faith in seeking,
obtaining, and complying with appropriate legal relief for improvements the improvement hat have been granted by the Board.
Because the owner has acted to secure zoning relief for all of his previous improvements, and because of Salem’s need for additional residential housing units, the relief sought may
be granted without substantial detriment to the public good, without nullifying or substantially derogating from the intent of the district or the purpose of the ordinance.