56 Highland Avenue ZBA Final DecisionDOMINICK PANGALLO
MAYOR
CITY OF SALEM, MASSACHUSETTS
BOARD OF APPEALS
98 WASHINGTON STREET ♦SALEM, MASSACHUSETTS 01970
TEL: 978-619-5685
October 4, 2024
Decision
City of Salem
Board of Appeals
The petition of NICOLE ROBLERO at 56 HIGHLAND AVENUE (Map 25,Lot
0015) (R2/ECOD Zoning Districts) for a Variance from Section 8.2.4 Fences and 6.8
Visibility at Intersections of the Salem Zoning Ordinance to allow an already constructed
4’ foot fence to remain on top of a constructed 4’ retaining wall bringing the total height
to 8’. In the ECOD, 4’ is the maximum height allowed and at intersections no more than
3 feet is allowed from street grade.
A public hearing on the above petition was opened on August 21st, 2024, pursuant to
M.G.L Ch. 40A, § 11 and was continued to September 18, 2024, and was closed on
September 18, 2024.
On August 21, 2024, the following members of the Salem Board of Appeals were present:
Nina Vyedin (Chair), Paul Viccica, Ellen Simpson, Stephen Larrick, and Carly McClain.
On September 18, 2024, the following members of the Salem Board of Appeals were
present: Nina Vyedin (Chair), Paul Viccica, Ellen Simpson, Hannah Osthoff and Carly
McClain.
Statements of Fact:
The petition is date-stamped June 18, 2024. The petitioner is seeking the Board of
Appeals approval to allow the already constructed fence to remain on the property.
1. 56 Highland Avenue is owned by Nicole Roblero (Burke).
2. The petitioner was Nicole Roblero.
3. 56 Highland Avenue is located in the R2 and the ECOD Zoning Districts (Map 25,
Lot 0015).
4. On August 21st, 2024, Nicole Roblero stated that her husband had built a fence
along the top of their retaining wall along the property line. Mrs. Roblero stated
that they thought that as long as the fence was four feet tall, it would be alright
to build.
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October 4, 2024
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5. Mrs. Roblero stated that their retaining wall at the property slopes down as the
sidewalk slopes down from the corner of Proctor Street along Highland Avenue.
Their fence is on the top of the retaining wall which brings the height to over four
feet.
6. Nina Vyedin inquired how tall the fence was at the corner of the property where
visibility would be most impacted. Mrs. Roblero stated that it was four feet, six
inches (4’6”) tall at the corner.
7. Paul Viccica stated the zoning ordinance, Section 6.8 – Visibility at Intersections,
states that at intersections, fences may be no taller than three feet. The
constructed fence that is on top of the retaining wall is already out of compliance
of the ordinance at four feet six inches.
8. Carly McClain inquired what is the reason for the fence at the property. Mrs.
Roblero stated that Highland Avenue is extremely busy, and they have kids and
pets that they want to keep safe from the busy street. In addition, the fence is to
keep people out of their yard, which has been an issue for them at home.
9. Ms. McClain inquired if objects from Highland Avenue had been going into their
yard. Mrs. Roblero stated that since the erection of the fence, there have been no
objects entering the yard.
10.Nina Vyedin asked Mrs. Roblero to describe her retaining wall. Mrs. Roblero stated
that as Highland Avenue slopes down from Proctor Street, their retaining wall
maintains level, so the retaining wall gets taller and taller to match the downward
slope along Highland Avenue to a height of retaining wall and fence to
approximately eight feet high.
11.Stephen Larrick stated that he felt that the current number of materials for the
petition did not allow him to vote comfortably regarding the petition. He requested
to have additional materials regarding the street level grade versus the average
grade of the elevation at the site.
12.The Board requested that city staff go to the site and take measurements at the
site of the retaining wall and fence to gather more information to decide regarding
the petition.
13.Paul Viccica stated he understood the reason the fence was erected for the safety
of the Petitioner’s family, however, he had concerns regarding the safety of
pedestrians and motorists who use the intersection at Proctor Street and Highland
Avenue. The current fence is not in compliance with the zoning ordinance and the
petitioner does not have a fence permit for being placed in the Entrance Corridor
Overlay District (ECOD).
14.Nicole Roblero stated that she had gone to the Building Department and inquired
about needing a fence permit and stated she was told that she did not need a
fence permit to build the fence.
15.Mr. Viccica stated that if city staff did go and take measurements, the issue is still
that the fence and retaining wall do not comply with the zoning ordinance.
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October 4, 2024
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16.Stephen Larrick stated it would benefit the Petitioner to provide measurements of
the fence from the average grade with the reasons why the average elevation
grade is the correct measurement to use and not from the street level grade.
17.Paul Viccica stated he believed there are options for fence design that the
Petitioner could use that would comply with the zoning ordinance.
18.It was determined that city staff would connect with the Petitioner to coordinate a
time to come and measure the fence and retaining wall.
19.Nicole Roblero made a request to continue to the September 18, 2024, meeting.
20.The petition was continued to September 18, 2024, Zoning Board of Appeals
meeting.
21.On September 18, 2024, Nicole Roblero showed engineer certified plans to the
board showing the height of the fence and the retaining wall to the board. Mrs.
Roblero also showed plans showing that the triangle portion, from Section 6.8 of
the zoning ordinance, was not in the stated twenty-five feet distance from the
point of intersection measured along street lines.
22.Nina Vyedin asked Mrs. Roblero if she constructed the retaining wall at her
property. Ms. Roblero stated that she had constructed their retaining wall since
she had purchased the home.
23.Board members requested an opinion from outside counsel, Robin Stein, KP Law
on her interpretation of Section 6.8 of the City Ordinance. Ms. Stein stated that
the city did not have a definition of street lines in the ordinance and that makes it
hard to know what is exactly meant by street lines for this section. Ms. Stein
stated that in this situation the Board should look at how this ordinance has been
interpreted historically and how it has been applied by the Building Commissioner’s
office.
24.Stephen Larrick stated his interpretation was where the lot line meets the right of
way and how those lines make a triangle and how the fence within twenty-five
feet of that point of intersection would need to be under the three feet required
by the ordinance.
25.Paul Viccica stated that city had an ordinance that protects visibility lines for cars
and pedestrians the prevents fences from obstructing the views for safety reasons.
Mr. Viccica stated that the Petitioner built a fence on top of their retaining wall at
the corner that is now obstructing the views of cars and pedestrians. Mr. Viccica
stated that he felt that the fence needed to be removed.
26.Nina Vyedin stated that the fence needs to be three feet at the intersection and
four feet high at the other portions of the fence to meet the Entrance Corridor
Overlay District ordinance requirements.
27.Mr. Roblero stated that her neighbors also had fences that are over the height
requirements for the ECOD ordinance.
28.Hannah Osthoff inquired how tall the fence was at the corner. The plans show
that the fence is 4.7 feet on the Proctor Street side and 5.6 feet on the Highland
Avenue side.
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October 4, 2024
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29.Paul Viccica stated that he has driven the site multiple times and when you are at
the intersection one must drive past the stop line and into the crosswalk to see
the oncoming traffic. Mr. Viccica stated that he agreed that the allowed parking
needs to be further down Highland Avenue because the parking obstructs the view
of oncoming traffic as well. However, the Board was not reviewing a request
regarding the parking along Highland Avenue. Mr. Viccica stated that the city has
invested sums of money to improve the safety of this intersection and the fence is
making it less safe by it being the height that it is.
30.Nina Vyedin stated that there are other fence options the petitioner can have that
follow the ordinance that allows them to keep a fence for their property.
31.The meeting was opened to public comment.
32.George Hoxa, 52 Highland Avenue, stated he was concerned that the retaining
wall was not constructed by an engineer and that it was failing in places. He also
stated he is opposed to the fence.
33.Patti Marsillo, Ward 3 Councilor, stated that she was concerned about the visibility
of the intersection with the fence. Ms. Marsillo stated that the fence was making
the intersection and crosswalk unsafe. She is opposed to the fence.
34.Patrick McCormick, engineer for the plans, stated that the most significant sight
blockage was due to the parked cars along Highland Avenue.
35.Paul Viccica stated that he has not heard a hardship for the variance during the
petition. Mr. Viccica stated that there were no special circumstances that affected
the land. He stated the petitioner already affected the land by building the new
retaining wall. He stated the Petitioner can modify the existing fence and abide
by the dimensional requirements outlined in the Ordinance. Mr. Viccica stated that
there were no grounds for a variance with the petition.
36.Board members stated the request for relief at 56 Highland Avenue derogates from
the intent and the purposes of Ordinance 6.8 and Ordinance 8.2.4. Board members
stated the Petitioner could still have a fence at their property just not a fence with
the current constructed dimensions.
The Salem Board of Appeals, after careful consideration of the evidence presented at the
public hearings, and after thorough review of the petition, including the application
narrative and plans, makes the following findings that the proposed project meets the
provisions of the City of Salem Zoning Ordinance:
Variance Findings:
The Board finds that the adverse effects of the proposed use will not outweigh its
beneficial impacts to the City or the neighborhood, in view of the particular characteristics
of the site, and of the proposal in relation to that site. In addition to any specific factors
that may be set forth in the zoning ordinance, the determination includes consideration
of each of the following:
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October 4, 2024
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•Do special conditions and circumstances especially affect the land, building, or
structure involved, generally not affecting other lands, buildings, and structures
in the same district. The Board determined the Applicant changed the land when
they erected their new retaining wall.
•Will literal enforcement of the provisions of the Ordinance would involve
substantial hardship to the applicant in attempting to put the property to
productive use. The Board determined that there was no hardship.
•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 requested relief specifically derogates from
the purpose of the ordinance.
On the basis of the above statements of fact and findings,the Salem Board of Appeals
voted one (1) in favor (Carly McClain), and four (4) opposed (Nina Vyedin
(Chair)Paul Viccica, Ellen Simpson, and Hannah Osthoff))to deny NICOLE
ROBLERO Variances from Section 8.2.4 Fences and 6.8 Visibility at Intersections of the
Salem Zoning Ordinance to allow an already constructed multi-dimensional fence to
remain on top of a constructed multi-dimensional retaining wall.
The request for Variances is denied.
__________________________
Nina Vyedin, Chair
Board of Appeals
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 20 days of filing of
this decision in the office of the City Clerk. Pursuant to the Massachusetts General Laws
Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take
effect until a copy of the decision bearing the certificate of the City Clerk has been filed
with the Essex South Registry of Deeds.
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October 4, 2024
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