36 DEARBORN STREET - BUILDING PERMIT APP 36 DEARBORN STREET
ARDIFF, ARDIFF & MORSE
WILLIAM B.ARDIFF ATTORNEYS AT LAW
RALPH E.ARDIFFFJR. -
GEORGE E.MORSE 32 MAPLE STREET
MALCOLM F. MscLEAN,III
ROBERT L.HOLLOWAY,JR. DANVERS,MA 01923
ALAN L.GRENIER TEL.774-7121
ROBERT P.YEATON AREA CODE 617
JOHN S.LEGAS EY
EUGENE O.ISAAK
JAMES C.HESSION
DAVID BAER
EDWIN J.SMITH
MARK E.VERSH BOW
JEAN CAREY DAVIS
March 23, 1981
Inspector of Buildings
City of Salem
One Salem Green
Salem, Massachusetts 01970
RE: Richard E. Savickey
Dear Sir:
My client, Richard E. Savickey, of 36 Dearborn Street, Salem,
Massachusetts, hereby requests a formal opinion from you in
your capacity as Zoning Enforcement Officer for the City of
Salem.
Mr. Savickey owns several properties in the City of Salem which
are presently, or were previously, used as rental properties.
According to the provisions of a Zoning By-Law recently adopted
by the City of Salem, Mr. Savickey will require a Special Per-
mit from the Board of Appeals in order to convert any or all of
his properties to condominium form of ownership. We request at
this time that you determine whether or not the Special Permit
requirements are applicable to Mr. Savickey and to the proper-
ties which he owns.
A common fact pattern exists for each of the properties. After
the first notice of the proposed Zoning By-Law was published,
but prior to second passage of the proposed By-Law by the Salem
City Council, Mr. Savickey submitted to the Salem Planning
Board a plan referred to in Section 81P of Chapter 41 of the
General Laws. Such a plan is commonly referred to as an "Approval
Not Required" plan. Simultaneously, he gave written notice of
such submission to the City Clerk. Subsequently, the Planning
Board proceeded to endorse the words "Approval Under the Sub-
division Control Law Not Required" on each of the plans.
Inspector of Buildings
Page 2
March 23, 1981
According to General Laws, Chapter 40A, Section 6, "except as
hereinafter provided, a Zoning Ordnance or By-Law. . . .shall
apply to any change [of use] . . . .begun after the first notice
of" a public hearing on a Zoning Change. The statute there-
after provides that when an Approval Not Required Plan is
submitted to the Planning Board "and written notice of such
submission has been given to the City or Town Clerk, the use
of the land shown on such plan shall be governed by applicable
provisions of the Zoning Ordnance or By-Law in effect at the
time of the submission of such plan while such plan is being
processed under the Subdivision Control Law including the time
required to pursue or await the determination of an appeal re-
ferred to in said section, and for a period of three (3) years
from the date of endoresement by the Planning Board that approval
under the Subdivision Control Law is not required, or words of
similar import. "
As you can see, Mr. Savickey' s plans fall within the statutory
exception to the rule that the use of property is governed by
a Zoning Change from the date of first publication. By
filing his Approval Not Required plans before second passage
of the By-Law by the City Council, Mr. Savickey has "grand-
fathered" the use of his land according to the Zoning By-Law
in effect at the time the plans were submitted. The Zoning
then in effect was the old Zoning, not including the Condominium
Conversion By-Law. A Zoning Change does not become "effective"
until it is actually passed.
I submit that the Salem Condominium Conversion By-Law is an
attempt to regulate the use of land. Ordinarily, of course,
condominium is considered a form of ownership, and not a use.
However, if the City intends to treat condominium as a form
of ownership, then the By-Law is clearly invalid under Chapter
40A. Zoning may not regulate forms of ownership, but merely
the use of land according to statutory guidelines. Thus, if
the By-Law is to be valid, if at all, it must deal with use
and the statutory exception would apply.
For your information, I haverpreviously raised this issue with
William Tinti, the City Solicitor, and he is aware of this
analysis. To expedite your Office' s consideration of this
matter, I am forwarding a copy of this letter to Mr. Tinti.
You may appreciate my desire to save my client the time and
expense of a number of appearances before the Board of Appeals
to obtain a Special Permit. I believe that he does not need
such a Permit, and such a determination from you as Zoning En-
forcement Officer would be most helpful.
Inspector of Buildings
Page 3
March 23p 198.1
If I may provide any further information or background on this
matter, I would be more than happy to oblige.
Thank you very much in advance for your consideration in this
matter.
Yours truly,
Mark E. Vershbow
MEV:mcs
cc: Mr. William Tinti
City Solicitor
•70 Washington Street
Salem, Massachusetts 01970
cc: Mr. Richard E. Savickey
36 Dearborn Street
Salem, Massachusetts 01970