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1-3 EAST COLLINS STREET - BUILDING JACKET 1 �K W RKO Z IIS CUNNINGHAM, MACHANIC, CETLIN, JOHNSON. HARNEY & TENNEY LLP ATTORNEYS AT LAW Daniel M.Cmmingham(1w3-2013) Of Couosel: Ston L.Machamo Lakewood Office Park Edward C.Uehlein(19114003) Dana A.Catlin: 220 North Main Street,Ste.301 William M.Zell David C.Johasoa(i%9 2oro) Natick,Massachusetts 01760.1100 Richard B.Schafer Peter P..Toey m (508)651-7524 (781)237-7030 Richard A.Zucker Robert F.Tamuev Lgme D Lew Robert J.Riccio FAX:(508)653-0119 Pamtegals: Holly B.Anderson email:cmlaw@cmlaw.net Jean'Hall Maltais Anne C.Roawbe Megan H.Sullivan www.cunninghammacbanic.com P�JVe?-�I Steven G.Manchini t Ari Y. lobo D.Hadden 0 - t Also Admiued hl New Hampshire I(atherine ne Y.Y.Gaff ff - D Also Admitted in Vemcm Erin A.Goss Edward 1.Doherty N January 26, 2017 BY CERTIFIED MAIL Rebecca Curran, Chair Peter Copelas, Member Thomas Watkins, Member City of Salem, City of Salem, City of Salem, Board of Appeals Board of Appeals Board of Appeals 14 Clifton Ave 40 Warren Street 24 Surrey Road Salem, MA 01970 Salem, MA 01970 Salem, MA 01970 Mike Duffy, Member James Tsitsinos, Member James Hacker,Alternate City of Salem, City of Salem, City of Salem, Board of Appeals Board of Appeals Board of Appeals 1 Warren Court 55 Lawrence Street, Unit#2 4 Mayflower Lane Salem, MA 01970 Salem,MA 01970 Salem, MA 01970 Paul Viccica, Alternate Michael Meyer, Trustee City of Salem, 11 Bay Street Board of Appeals Beverly, MA 01915 35 Broad Street Salem, MA 01970 Re: Notice of Appeal of Decision of the City of Salem Board of Appeals,by; ' Scott Truhart-et al � Petition Dt: September 27, 2016 Petitioner: Michael Meyer, Trustee Owner: Michael Meyer, Trustee Premises: 1-3 East Collins Street7c Decision Dt: January 4, 2017 Dear Messrs./Mme.: Pursuant to MGL chapter 40A, §17,you are hereby given notice that Scott Truhart, et al, by and through their undersigned attorney, has appealed the above-referenced Decision of CUNNINGHAM,MACHANIC,CETLIN,JOHNSON,HARNEY&TENNEY,LLP City of Salem Board of Appeals Notice to Defendants January 26, 2017 Page 2 of 2 the City of Salem Board of Appeals, which was filed with the Salem City Clerk on January 4, 2017. I have enclosed a copy of the First Amended Complaint, which is being served upon you with this Notice. Thank you. Very truly yours, CUNNINGHAM, MACHANIC, CETLIN,JO N &HARNEY, LLP William M. Zall cc. City Clerk,City of Salem(Correspondence only) Clients WMV50368 7193-0001 .. CITY OF SALEM MASSACHUSETTS BOARD OF APPEAL 120 WASTiRaGTON STREET $ALEt11I MnSsnCFR7gpR 03W U P 2: 13 KIMBERLEYDRisCOLL TELE:978-745-9595♦ FAX:978-740-9 MAYOR FILE 11 CITY CLERK, SALEM, MASS. January 4, 2017 Decision City of Salem Board of Appeals A petition of MICHAEL MEYER, TRUSTEE, requesting a Special Permit per Sec. 3.3.2 Nonconforming Uses and Variances per Sec. 4.1.1 Dimensional Requirements for the following minimum lot area per dwelling unit, minimum lot frontage, minimum distance between buildings, and maximum number of stories to construct eight (8) residential units at 1-3 EAST COLLINS STREET (Map 36 Lot 277) (R-1 Zoning District) At the October 19,2016 meeting,a public hearing was open pursuant to M.G.L Ch. 40A, § 11.Testimony was heard on that date and the public hearing was continued on October 19,2016,November 16,2016 and December 21,2016. The hearing was closed on December 21,2016 with the following Salem Board of Appeals members present: Rebecca Curran (Chair),Peter A. Copelas,Mike Duffy,Tom Watkins, and Jimmy Tsitsinos. The Petitioner is requesting a Special Permit per Sec. 3.3.2 Nonconforming Uses and Variances per Sec. 4.1.1 Dimeurional Requirements for the following minimum lot area per dwelling unit, minimum lot frontage, minimum distance between buildings, and maximum number of stories to construct eight (8)residential units. Statements of fact: 1. Attorney Grover presented the petition on behalf of the petitioner. Dan Ricciarelli of Seger Architects, of Salem, MA and Scott Cameron, CE of Morin-Cameron Group, of Danvers, MA also presented testimony. 2. In March of 2015, the petitioner withdrew an application without prejudice for a development at this location for a residential use and submitted a significantly different application on September 27,2016 for review. 3. In the petition date-stamped September 27, 2016, the Petitioner requested a Special Permit per Sec. per Sec. 3.3.1 Nonconforming Uses of the Salem Zoning Ordinance to change and existing nonconforming use of a social club to another nonconforming use of multi-Family residential units. The petitioner is also requesting Variances for relief from Sec. 4.1.1 Table of Dimensional Requirements for minimum lot area per dwelling unit,minimum lot frontage, minimum distance between buildings, and number of stories. 4. The property is located at the Planters Street and East Collins Street in an R-1 Zoning District. The previous use of the property was the Ward 2 Social Club. Y1 5. At the October 19, 2016 public hearing testimony was heard and there was a question about whether the property had lost its grandfathered non-conforming status. The Board requested a legal opinion from the City Solicitor to clarify whether property had lost its non-conforming status. The non- conforming status of the property determines whether the Board has the ability to allow a change in the property use from one non-conforming use to another non-conforming use by special permit. 6. On November 16, 2016, the petitioner requested a continuation of the public hearing to the next regularly scheduled meeting on December 21,2016. No testimony was heard at this meeting. 7. At the December 21,2016 meeting, the Board reviewed and discussed the legal opinion from the City Solicitor dated December 4,2016. 8. The following are conclusions from the legal opinion relevant to the issues discussed at the October 19, 2016 public hearing. • The use of the property is entitled to protected status as a legally non-conforming use under M.G.L. Ch. 40A Section 6. • The club did not abandon its use of the property in January 2014, when it closed the building to the public. • The sale of the property to the petitioner does not constitute a termination of the use of the Property • It is within the authority of the City of Salem Board of Appeals to issue a special permit to allow a non-conforming use of the Property to continue, provided that the Board issues a finding that the proposed new use of the Property, is less detrimental than the existing nonconforming use. 9. Delinquent property taxes were paid by the petitioner before the December 21, 2016 public hearing. 10. On November 30, 1948, various residents of the City of Salem formed the Club as a Massachusetts not-for-profit corporation organized under M.G.L. Ch. 180 for the purpose of promoting brotherhood and charity in the Ward II District of Salem. 11. On November 1, 1956, the Club acquired title to the Property for the purpose of constructing a building to serve as the location for the charitable activities of its membership including a place to hold meetings and place where the public would be able to hold events.At this time, the property was located in a Single Residence District- B and the 1955 Ordinance was in effect. Pursuant to Sec.4.B.5 the Use of the Property was a permitted use in the Single Residence District, but is no longer a permitted use by right in the Rl Zoning District. The Social Club is an existing non-conforming use. (See Opinion 1-3 E. Collins St. Dated Dec. 4,2016 for further discussion). 12. On May 21,2015, the Club sold the property to the petitioner. The land area of the property consists of 41,834 square feet and has a one-story concrete block structure. The existing structure does not meet the current floodplain construction standards. 13. The petitioner is proposing to change the use of the property from the non-conforming use of a social club to multi-family residential dwelling units. 14. The petitioner testifies that the proposed residential use of the property is more consistent with the surrounding neighborhood use than the existing social club and bar room. 15. The existing building cannot be reconstructed for another purpose under the Chapter 91 requirements due to current flood plain construction standards.As such, the petitioner is proposing to demolish the Ward 2 Social Club structure to construct eight (8)residential dwelling units in single and two family dwelling arrangements. 16. The proposed eight (8) units will be divided into three (3) duplexes and two (2) single-family homes. The petitioner testifies that the proposed residential use is consistent with the use of the surrounding neighborhood and the dwelling unit arrangement of single and two-family units is consistent with the arrangement of dwelling units within the surrounding neighborhood. 17. The petitioner is requesting a special permit per Sec. 3.3.2 Nonconforming Uses to change the existing non-conforming use of the property from the existing Ward 2 Social Club to multi-family residential dwelling units in single and two (2) family arrangements. 18. The petitioner expects to provide future public access to the waterfront through the property,in a location determined by the Planning Board and Massachusetts Department of Environmental Protection (DEP) through the Chapter 91 permitting process. 19. The proposed plan is providing fourteen (14)parking spaces where the requirement is twelve (12) parking spaces. The Salem Zoning Ordinance requires one and a half(1.5)parking spaces per dwelling unit. 20. Currently, there is one long curbcut with approximately thirty (30)parking spaces on the property. The petitioner is proposing to reduce the number of parking spaces and formalize a curbcut that meets the dimensional requirement of a maximum of 20'feet for a residential use. 21. Mr. Cameron, CE of Morin-Cameron Group, of Danvers,MA testified that the existing public utilities and other public services are adequate to support the proposed eight(8) residential units. 22. Mr. Cameron,CE of Morin-Cameron Group,of Danvers,MA testified that the impacts on the natural environment,including drainage would be positive.The petitioner is proposing to reduce the existing impervious surface from 30%to 15%. The property will comply with all stormwater management requirements. 23. The existing Ward 2 Social Club structure is 5,200 square feet at 12.5%lot coverage. In comparison, the five (5) proposed residential structures are a total of 6,400 square feet at 13.3%lot coverage. Mr. Cameron testifies that the proposed structures will have similar lot coverage and footprint areas as the existing structure. 24. Mr. Cameron testifies that existing average lot area per dwelling unit in the neighborhood one (1) dwelling unit per 2,600 square feet. The petitioner is proposing a lot area per dwelling unit of 5,229 square feet, making the proposed development approximately 30%less dense than neighboring dwelling units. 25. Mr. Cameron testifies that the spacing between buildings in the existing neighborhood is approximately ten (10) to twenty (20) feet. The proposed distance between the buildings at 1-3 East Collins Street is twenty-five (25� feet at the narrowest point. 26. The footprints of the proposed buildings are comparable to the existing footprints of the buildings in the surrounding neighborhood. 27. Mr. Ricciarelk of Seger Architects testified that the proposed building footprints, massing and architectural design are consistent with the architectural details,massing, and form of the surrounding neighborhood. For example, the proposed buildings incorporate simple cladding, bay windows, and "A" shaped rooflines. The building facades are slender with the remaining mass of the structure in the rear.All of these details fit with the existing character of the dwelling units in the neighborhood. 28. The arrangement of the buildings is in response to the public request to retain view corridors of the waterfront. 29. The potential fiscal impact,including impact on the City tax base is positive. 30. The petitioner is also requesting four (4) variances including minimum lot area per dwelling unit, minimum lot frontage,minimum distance between buildings,and maximum number of stories. 31. The petitioner, proposed the following deviations from the dimensional requirements of the Zoning Ordinance: a) a lot area per dwelling unit of 5,300 square feet where the requirement per the Zoning Ordinance is 15,000 square feet; b) 94.5 feet of frontage where the requirement per the Zoning Ordinance is 100 square feet of linear frontage;c) a minimum of 25 feet of distance between buildings where the minimum required distance is 40 feet d) Three (3) stories where the maximum requirement is 2.5 stories. 32. The petitioner testifies that the special conditions and circumstances that especially affect the land, building or structure involved,generally not affecting other lands,buildings and structures in the same district is that a significant portion of the property is salt march and coastal dune and the entire site lies within the floodplain. Further, the site is traversed by an easement for the natural gas line,which will be constructed in the near future. In addition,most of the land is within the jurisdiction of the Commonwealth of Massachusetts under Chapter 91. The land is also located in the most restrict zoning district,but surrounding by districts that are less restrictive.These unique conditions of this property make the development of the site expensive and challenging. 33. The petitioner testifies that the social club is no longer viable as evidenced by its recent closure due to declining membership. Further the existing building cannot be reconstructed for another purpose under the Chapter 91 requirements due to current flood plain standards.The literal enforcement of the zoning ordinance would allow the property owner to construct a single-family home. Due to unique conditions of the land, the cost of the required specialized construction would exceed the market value of the home for the area. 34. The petitioner proposes a density of 5,300 square feet where the requirement is 15,000 square feet per dwelling unit and testifies that the proposed density of eight (8)residential dwelling units is needed.A single-family use,which is an allowable use by right on this property,is not an economically feasible use and creates an economic hardship for the petitioner due to the cost of construction needed for this property. 35. The petitioner is proposing 94.5 feet of frontage where the requirement per the Zoning Ordinance is 100 square feet of linear frontage. The frontage is a pre-existing non-conforming dimension with no alternative to provide additional linear frontage. 36. The petitioner is proposing 25'-30'feet of distance between buildings where the minimum required distance is 40 feet. 37. The petitioner is proposing to construct dwelling units that are three (3) stories rather than the maximum requirement of 2.5 stories. The proposed living areas are raised with parking proposed underneath the building by necessity because the entire property is located within the flood zone. Coastal construction requires that the first floor be elevated above the ten (10) foot flood elevation. 38. The dwelling unit mean rafter height does not exceed the 35'foot maximum requirement. 39. At the public hearings, ten (10) residents spoke in opposition to the proposal and one (1) member spoke in support of the petition. The Salem Board of Appeals, after careful consideration of the evidence presented at the public hearing, and after thorough review of the petition, including the application narrative and plans, and the Petitioner's presentation and public testimony, makes the following findings that the proposed project meets the provisions of the City of Salem Zoning Ordinance: Findings for Variance: 1. The special conditions and circumstances that especially affecting land,building or structure involved generally not affecting other lands,buildings, and structures in the same district is that a significant portion of the property is salt march and coastal dune and the entire site lies within the flood plain. Further, the site is traversed by an easement for the natural gas line,which will be constructed in the near future. In addition,most of the land is within the jurisdiction of the Commonwealth of Massachusetts under Chapter 91. The land is also located in the most restrict zoning district,but surrounding by districts that are less restrictive. These unique conditions of this property make the development of the site expensive and challenging. 2. The literal enforcement of the provisions of the Ordinance would involve substantial hardship as the cost of building a single-family home on the property would far exceed the market value of the area. 3. 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. Findings for Special Permit 1. The proposed change use of a non-conforming social dub to another non-conforming use of multi- family residential uses in a single and two (2) family arrangement is not substantially more detrimental than the existing non-conforming use to the impact on the social, economic or community needs served by the proposal. 2. There are no impacts on traffic flow and safety, including parking and loading as there are fourteen (14) on-site parking spaces that exceed the minimum parking requirements of the Salem Zoning Ordinance. 3. The capacity of the utilities and public services are not significantly affected by the project. 4. There are net positive impacts on the natural environment,including drainage as the existing property has approximately 12,000 square feet of existing pavement surface. The petitioner is proposing to reduce the impervious surface on the property to approximately 5,500 square feet. 5. The proposal improves neighborhood character as it improves the property and the residential use is consistent with the use of the surrounding neighborhood. The dwelling unit arrangement of single and two- family units is consistent with the arrangement of dwelling units within the surrounding neighborhood. Further, proposed building footprints, massing, density and architectural design are consistent with the architectural details,massing, density and form of the surrounding neighborhood. 6. The potential fiscal impact,including impact on the City tax base is positive. On the basis of the above statements of facts and findings,the Salem Board of Appeals voted five (Rebecca Curran (Chair),Peter A. Copelas,Jimmy Tsitsinos,Mike Duffy, and Tom Watkins)in favor and none (0) opposed, to grant a Special Permit per Sec. 3.3.2 Nonconforming Uses and Variances per Sec. 4.1.1 Dimensional Requirements of the Salem Zoning Ordinance, for minimum lot area per dwelling unit, minimum lot frontage, minimum distance between buildings, and maximum number of stories,to construct eight(8) residential units subject to the following terms,conditions and safeguards: 1. The Petitioner shall comply with all city and state statutes,ordinances,codes and regulations. 2. All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner 3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 4. Petitioner shall obtain a building permit prior to beginning any construction. 5. Exterior finishes of new construction shall be in harmony with the existing structure. 6. A Certificate of Inspection shall be obtained. 7. A Certificate of Occupancy shall be obtained. 8. Petitioner shall obtain street numbering from the City of Salem Assessor's Office and shall display said number so as to be visible from the street. 9. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to, the Planning Board. Special Condition: 1. The applicant shall provide public access to the waterfront per DEP Chapter 91 license requirements. Rebecca Curran,Chair Board of Appeals A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from thin dedmon,if any, sball be made pursuant to Section 17 of the Massatbuseas General Lams Cbapier 40A,and shall be filed within 20 dayr offiling of ibis deiisrion in the offer of the City Clem Pursuant to the Matracbnret#General Laws Cbapter 40A, Section 11, the Variance or Special Permit granted bemn sball not take effea until a copy of the deawn bearing the aroficate of the City Clerk bas beenfiled nth the Essex South Registry of Deeds. Ci GHA�VIr MAS UUM JOHNSON LEFA +'Y& TENNEY LLP ATTORNEYS AT LAW Soo LM■a Oml�wm lAkewood Office Park oJCaumd: DmaA.cediat 220 Notch Mein 8bVK Ste.301 rawmd C.1lddmmn411 soros hDmddGJobPAn(1q"A0 Natck,MSasadusg*01760-1100 ar�dS.sdwgyp.RM" n1TF. (508)651-7574 (781)237-7030 Jj Hohat J.Biecic PAX-(508)653-0119 per;-- Am C.eomil:cndaw(( =1aw.net. Jaoww Mahais m8wa SAM www.qumin�l ODM Ja Kw Zaa Smau Q.Mead®tA PM"J.womwr Ari Y.MOWN JV D.HmddmD tA1$0AdwftWkNmwHmmpabim Kmhp Y.Gaff Q AbDAdmdtmd is Vmmmt F4n A Cm Edwmd J.Doh"N January 24,2017 ca �. Commonwealth Of Massachusetts r"-1 Lend Court Department 3�' i Three Pemberton Square, 5a'Floor 3r" >.rna Boston,MA 02108 cn:K Re: Scott Truhart %al v SatW Board of Anneals ►�eY'sed - `a Case No. 17 MISC 000029 GBP Stc -p• t (a 2On np To the Recorder: Enclosed please find the following documents for filing in the above�referenced mater: 1. Notice of Amendment of Complaint as of Course 2. First Amended Complaint Pursuant to MGLA C.40A, §17 Kindly file in your usual manner. Thank you. Very truly yours, CUNNINGHAM,MACHANIIC,CETLIN, JO SON,BARNEY&TENNEY LLP William M. cc. Salem City Clerk(by hand) WMZl50165 9173-0001 t� COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT Essex, ss Case No. 17 MISC 000029 GBP Scott Truhart,Tricia Truhart, Mary E.Knight,Charles E.Knight, Kim B. Surles,Timothy M. Connell, and Adam Craig, Plaintiffs V. Zoning Board of Appeals for the City of Salem, and Rebecca Curran,Peter Copelas, Thomas Watkins,Mike Duffy, James Tsitsinos,James Hacker and Paul Viccica, as they constitute the City of Salem Board Appeals, and Michael Meyer, Trustee of 1-3 East Collins Street Realty Trust Defendants NOTICE OF AMENDMENT OF COMPLAINT AS OF COURSE The Plaintiffs amend their Complaint as of course by substituting said complaint with the attached First Amended Complaint for the purpose of correcting the Caption. This amendment is made as a matter of course pursuant to the terms of Mass.R.Civ.P.Rule 15(a),insofar as service has not been made on,nor have any responsive pleadings been served by any Defendant and no order of dismissal been entered. 1 50115 1"Amended Collins St./ZBA Complaint Respectfully submitted, The Plaintiffs, BytT772 William M.Zall, BO#554135 Email: bzaU©cmlaw.net CUNNINGHAM,MACHANIC, CETLIN,JOHNSON,&HARNEY LLP 220 North Main Street,Suite 301 Natick,MA 01760 �1 TEL: (508)651-7524 Dated: FAX: (508)653-0119 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Notice of Amendment of Complaint as of Course and of the Amended Complaint were served upon the Defendant, City of Salem, Massachusetts Board of Appeals,by hand on Tuesday,January 24,2017,to: City Clerk City of Salem MA Salem City Hall 93 Washington Street Salem,MA 01970 William M.Zall 2 50115 1"Amended Collins St./ZBA Complaint Ar COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT Essex, ss Case No. 17 M1SC 000029 GHP Scott Truhart,Tricia Truhart, Mary E. Knight,Charles E.Knight, Kim B. Surles,Timothy M.Connell, I and Adam Craig, Plaintiffs I V I City of Salem Massachusetts,Board Of Appeals, I I and I I Rebecca Curran,Peter Copelas, Thomas Watkins,Mike Duffy, James Tsitsinos,James Hacker and Paul Viccica,as they constitute the I City of Salem-ltfr_ssachuselts,Board of Appeals, I and I Michael Meyer,Trustee of 1-3 East Collins I Street Realty Trust I Defendants I FIRST AMENDED Complaint Pursuant to MGLA C.40A,§17 Appealing a Zoning Board Decision 1. The Plaintiffs, Scott and Tricia Truhart,are natural person residing at 4 East Collins Street, Salem,Massachusetts. 2. The Plaintiffs,Mary E.Knight and Charles E.Knight,are natural persons residing at 5 East Collins Street, Salem,Massachusetts. 3. The Plaintiffs,Kim B. Surles,is a natural person residing at 27 Planters Street, Salem, Massachusetts. 4. The Plaintiff;Timothy M. Connell,is a natural person residing at 6 East Collins Street, Salem,Massachusetts. 1 50115 V Amended Collins St./ZBA Complaint 5. The Plaintiff,Adam Craig,is a natural person residing at 29 Planter Street, Salem, Massachusetts. 6. The Defendant,City of Salem Massachusetts,Board of Appeals (hereinafter,the"Salem ZBA!),is a permit granting authority in the City of Salem,Massachusetts,and has a usual place of business at 120 Washington Street, Salem,Massachusetts. 7. The Defendants,Rebecca Curran,Peter Copelas,Thomas Watkins,Mike Duffy and James Tsitsinos,James Hacker and Paul Viccica, are herein named in their capacity as members or alternates of the Salem ZBA. 8. The Defendant,Michael Meyer,Trustee of 1-3 East Collins Street Realty Trust ("Petitioner'), is the purported owner of real property located at 1-3 East Collins Street, Salem,Massachusetts ("Premises"). 9. Michael Meyer has a last known residential address of 11 Bay Street,Beverly, Massachusetts. 10.The Petitioner purportedly acquired title to the Premises by deed, dated May 21,2015, and recorded with the Essex South District Registry of Deeds in Book,34073,Page 359. A true and correct copy of the aforementioned deed is attached hereto as Exhibit A. 11.Pursuant to the City of Salem Zoning Ordinance("Ordinance"),the Premises are located in an RI Zoning District. 12. Pursuant to the Ordinance,the only residential use within an R 1 Zoning District which is allowed as of right is that of a single family dwelling. 13.Pursuant to §3.3.1 of the Ordinance, where a nonconforming use lawfully existed prior to adoption of the Ordinance, such nonconforming use may continue,provided that no modification of the use is accomplished unless authorized under the Ordinance. 14.Prior to adoption of the Ordinance, a social club lawfully existed at the Premises. 15. The social club continued to operate at the Premises subsequent to adoption of the Ordinance under the protected status granted pursuant to the aforesaid §3.3.1. 16. Pursuant to §3.3.2 of the Ordinance,the Salem ZBA may allow a change from one nonconforming use to another nonconforming use under certain conditions cited therein. 17.In order to allow a change under§3.3.2 of the Ordinance,the protected status afforded to the pro-existing nonconforming use of the Premises must not have been extinguished and, thus,the use must have been lawfully in existence at the time of the Petition. 2 50115 1"Amended Collins St./ZBA Complaint 18.Pursuant to § 3.3.6 of the Ordinance, a nonconforming use which has been abandoned,or not used for a period of two years, shall lose its protected status and be subject to all of the provisions of the Ordinance. 19. On or about September 27,2016, the Petitioner filed a petition with the Salem ZBA, seeking a Special Permit to change the use of the Premises from one nonconforming use to another nonconforming use(said petition hereinafter referred to as the"Petition"). A true and correct copy of the Petition is attached hereto as Exhibit B. 20. In addition to the aforementioned Special Permit,the Petition also sought a Variance from certain dimensional requirements under the Ordinance. 21. Pursuant to public notice issued pursuant to applicable provisions of MGLA C.40A,a public hearing on the Petition was commenced on October 19,2016,and continued from time to time until December 21,2016. 22.Upon information and belief,the pre-existing nonconforming use of the Premises had been abandoned by the owner thereof. 23. Upon information and belief,the pre-existing nonconforming use of the Premises was not used for a period of at least two year;prior to the filing of the Petition. 24. The protected status afforded the nonconforming use of the Premises was extinguished by abandonment. 25. The protected status afforded the nonconforming use of the Premises was extinguished by non-use for a period of two years prior to the filing of the Petition. 26.By virtue of the loss of protected status of the nonconforming use of the Premises,the Petitioner was not eligible for consideration of change to another nonconforming use under§3.3.2 of the Ordinance. 27. By virtue of the loss of protected status of the nonconforming use of the Premises,use of the Premises must conform with the requirements of the R1 Zoning District as allowed by the Ordinance. 28. On January 4,2017,the Salem ZBA filed its decision with the Salem City Clerk, allowing the relief requested in the Petition(the"Decision"). A certified copy of the Decision is attached hereto as Exhibit C. 29. Notwithstanding the lack of supporting evidence,the"Statements of fact"contained in the Decision erroneously concluded from a`legal opinion"that the pre-existing nonconforming use of the Premises had not been abandoned. 3 50115 1° Amended Collins St./ZBA Complaint 30. The Decision granting the Special Permit made no finding addressing whether or not the right to continue the pre-existing nonconforming use at the Premises had been extinguished due to non-use for a period of two year. 31.Notwithstanding the lack of supporting evidence,the Decision granting the Special Permit erroneously found that the requested nonconforming use was not substantially more detrimental to the neighborhood than the purportedly existing non-conforming use. 32.Notwithstanding the lack of supporting evidence,the Decision granting the Variance from dimensional requirements of the Ordinance,the ZBA erroneously found that"literal enforcement of the provisions of the Ordinance would involve substantial hardship as the cost of building a single-family home on the property would far exceed the market value of the area." 33.Upon information and belief, construction of a single family residence in conformance with the Ordinance would require significantly fewer variances than those which the Salem ZBA allowed in granting construction of the multi-unit structures. 34. The Decision granting the Variance from dimensional requirements for reconstruction after voluntary demolition, which variance must be sought by special permit. 35. The Plaintiffs are aggrieved by the Decision. 36.The Decision was not supported by substantial evidence. 37.The Decision exceeded the authority of the Salem ZBA,was based upon legally untenable grounds and was otherwise arbitrary, capricious and unreasonable. COUNTI TO ANNUL DECISION GRANTING NONCONFORMING USE AS PETITIONER'S RIGHT TO CONTINUED NONCONFORMING USE WAS EXTINGUISHED BY ABANDONMENT (Ordinance 33.6; M.G.L C.40A,§6) . 38.The Plaintiffs reallege and incorporate by reference the allegations contained in the above paragraphs. 39.Pursuant to §3.3.6,a nonconforming use which has been abandoned or not used for a period of two years, shall lose its protected status and be subject to all of the provision of the Ordinance. 40.The nonconforming use of the Premises was abandoned. 4 50115 I"Amended Collins St./ZBA Complaint I I COUNT H TO ANNUL DECISION GRANTING NONCONFORMING USE AS PETITIONER'S RIGHT TO CONTINUE NONCONFORMING USE WAS EXTINGUISHED BY NON-USE FOR PERIOD OF TWO YEARS (Ordinance 3.3.6;M.G.L C.40A,§6) 41. The Plaintiffs rcallege and incorporate by reference the allegations contained in the above paragraphs. 42. Pursuant to §3.3.6, a nonconforming use which has been abandoned or not used for a period of two years, shall lose its protected status and be subject to all of the provision of the Ordinance. 43. The Premises had not been used for the nonconforming use for a period of at least two years prior to the filing of the Petition. COUNT HI TO ANNUL DECISION GRANTING NONCONFORMING USE AS PROPOSED USE IS NOT LESS DETRIMENTAL THAN PURPORTEDLY EXISTING NONCONFORMING USE (Ordinance 33.2; M.G.L C.40A,§6) 44.The Plaintiffs reallege and incorporate by reference the allegations contained in the above paragraphs. 45.To the extent, if any,that the Petitioner's right to continue the purportedly existing nonconforming use is found to have not been extinguished,then Section 3.3.2 of the Ordinance requires that any change to another nonconforming use be"less detrimental. 46. The nonconforming use granted by the Decision is not less detrimental than the purportedly existing nonconforming use. COUNT IV TO ANNUL DECISION GRANTING VARIANCES FROM DIMENSIONAL REQUIREMENTS AS REQUISITE HARDSHIP IS NOT PRESENT 47. The Plaintiffs reallege and incorporate by reference the allegations contained in the above paragraphs. 48.The Petitioner has not shown the existence of requisite hardships to support granted variances,where far fewer, if any,variances would be required to construct a structure within the requirements of the Ordinance. 5 50115 la Amended Collins St/ZBA Complaint WHEREFORE,the plaintiff demands judgment as follows: a. That any pre-existing non-conforming use of the Premises be declared lost due to non-use; b. That any pre-existing non-conforming use of the Premises be declared lost due to abandonment; C. That the Decision of the City of Salem Massachusetts, Board of Appeals allowing the Petitioner to change from one non-conforming use to another non- conforming use be annulled; d. That the Premises be used only in accordance with the City of Salem Zoning Ordinance; and C. That this Court grant such further relief as it deems necessary and proper. Respectfully submitted, The Plaintiffs, By their attom William M.Zall, O 4554135 Email: bzaU@cmlaw.net CUNNINGHAM,MACHANIC, CETLIN,JOHNSON,&HARNEY LLP 220 North Main Street, Suite 301 Natick,MA 01760 TEL: (508)651-7524 Dated: FAX: (508)653-0119 6 501151"Amended Collins St.!Z,BA Complaint � � H Return to: SO= Fm POO c 05/21/2015 a2:1a CM h 113 {Space Above This Line Reserved For Registry of Deeds Use) QUITCLAIM DEED WARD II SOCIAL CLUB OF SALEM,INC.,a Massachusetts Corporation,with a principal place of business at 1-3 East Collins Sheet,Salem,Massachusetts 01970, for nominal consideration, grants to MICHAEL MEYER,TRUSTEE OF 13 EAST COLLINS STREET REALTY TRUST,under Declaration of Trust dated May 1,2015,as evidenced by a Trustee Certificate Q recorded herewith, �0 d with QUITCLAIM COVENANTS rn a certain parcel of land situated in Salem,Essex County,Massachusetts,shown on a Plan entitled:."NEW ENGLAND POWER SERVICE COMPANY PART OF NEW ENGLAND ELECTRIC SYSTEM BOSTON,MASS.,NEW ENGLAND POWER COMPANY PLAN OF LAND IN SALEM,MASSACHUSETTS TO BE CONVEYED TO WARD II SOCIAL CLUB OF SALEM,INC.,SCALE 1'40' DATE AUG 6, 1956L-5840",a copy of which is attached to U a Deed dated November 1, 1956 and==led with Essex South District Registry of Deeds at Book 4334,Page 560,and bounded and described as follows: Beginning at the Northwesterly comer of said parcel at other land of the Grantor at a point on the Easterly side of East Collins Street;said point being 21.6 feat distant Southwesterly from an iron pipe at the Southerly intersextion of said East Collins Street and Planters Street; thence running Southeasterly 271.80 feet to a point; thence turning and running Southwesterly 215.6 feet to a point at land now or formerly of Scher—said last two courses and distances being by other land now or formerly of New England Power Company; thence tinning and conning Nor&wasterly by said land of Scher, 128 feet to a point at land now or ibrmerly of Campbell; : . OPM tum ms.and nnnung Northeasterly 27 feet to a point; glow.to -and rimning Northwestarly'150 feat to said Eat Collins Street said lest two eom8w'end dbtanxs being by said land of Campbell; thence nmring and running Northeasterly by said East Collins Street 94.5 feet to the point of big. Cants ft.41,640 square Sant of land according to said Plan., Being the same premises oonveyed by Deed dated Novemiber 1, 1956,recorded with the Essar South District Registry of Deeds in Book 4334,Page 560:. This cooveyance is subject to all outstanding mortgages and liens of record. This conveyance is also made subject to wwmuxtg,mepdoms nd reservations ofreoord;i f any, insofar ss the same are in farce and applicable. (REMAINDER OF PAGE RnENMONALLY LEFT BLANK) Executed Is a sealed instrument ftrt �—1day of Mt5 WARD 11 SOCIAL CLUB OF SALEM, INC. BY: Nick Gordon, President COMMONWEALTH OF MASSACHUSETTS Esswx w. before me the undersigned notary public,personally appeared, Nick Gordon, President of the WARD II SOCIAL CLUB OF SALEM, INC.,WHO PROVED TO ME THROUGH SATISFACTORY EVIDENCE OF IDENTIFICATION,WHICH WASA PAI n L TO BE THE PERSON WHOSE NAME IS SIGNED ON THE PRECEDING INSTRUMENT,AND WHO ACKNOWLEDGED TO ME THAT HE SIGNED IT VOLUNTARILY FOR ITS STATED PURPOSE. CINA NOTARY PUBLIC rr My Commiselon expires: !i LI I l I CAROLFTHOMAS ���eMra�Nae�br� tz y CITY OF SAUD4 MASSAMUSIMS BOARD OFFAHWM rPETMON FQFjd cf!•Y OF S/MQA QiUWM BOARD OPAPPBAIS a SEP 21 P I= 50 12DWARD 7'ON STREET,3m PWOR SALEt XASM HtWrrS 01970 omt rr ct. tf lL N. nAss. Thas&PlmgDbmw of bwwomd i Phone9msci.f'6H suffr&740-paAe RECEIVED, a�mmtFtrDwttam,, re;oar>, ft SaffPLoxe MAM Ph® 978fi19L..W/Pie M7069M TOMBOABDOFAFPRAM SfP 27 26 71mtlndmWed+apadamGot bb%o Wbefeown ot wtabpmoddImdloraedIt DEPT.OF PLANNING& 7 Addms 1.3 Earl CoMw Strad Zonlug DbbftR 1 pommum Tr omLopUBNT Aaapp is b ftsohmkhd to the Bo wd ofApped der the Mgwb;vsuoe(sk 7M srmm=W dwmft whetym prWw to bo0d,the dhn=Wom,themeep:opmy is la end dm aonfugm4dd&+npdr l ohm owreotet a!0'z 10'oee sloryodettllm to W ham bmdedd 3 Sdmlmc in AvR 174 ft Dbbler.f1FrToeetg Aid6wPoce rogwhee ek mdrbmoit ehprti njdr nsorymdro bs3Afat 7&eenww:re4pdi 4►'+e! �7twdB91J6err t6eponpmed�tlmt wmt7d taeahtesJtedg+tM e�rAerrarymd w2?,�.j Sm SWbmsnts d Grounds attached. Per th[rnuon l em regneetnsg: ' (�Vmiwma(e)Som ptwieioes of emdm 4.1.1 of9ie Zaaieg/Nioeooe,apsifloily 6001 mbf. btmeepwdwfiftUAoft ddwmbaftmIAAWmkLhwops jt4 4qAcfrwya What b e0owW is 15,000 at,40%100 It Py sgjlf Awn? Nir),and whet 1 empeopoeiogisSmStalemmaofGmLma pt)egjvsoda?%?A (4ASp MP ' umkSedion3.3.2 offtZm>mgtadiamaeinordwIDUanBaomnm un to anWw I=detrhnmtd non cmfomft us& (>AM LoftheDxldaaoftheBvditIgeCler(dembedbdWw ( )Coqnhmdve Pair fbr tem of towor mttdade ihmsmg(dmmft btdow): C MMS pfeM 111.Sodd Club Am lM Dl brehtdvV o Yes ()No VW obwprer AMFON*Aamd The UndmJpW hombypeffim ft Bm d ofAppada ro very Ste ftm ofthe MW Todop Qdb=u amt alow top *O to bemaawucnduper Poop usamiti4urhomhwemerdofmidZm By-Imworldievdve d4lmlty or a mecomy ba ls*b the L%deniaoed wA zadmey be gemted wig sedtmntie0y daoO tgaemaro101011emdpotpwedareZoningChdbw=L CITY OF SALEK MASSACHUSHM BOARD OF APPEALS PEIMON FORM The toibwiec wrXas detommat bee been eabmlued wah m..ppmeaeen: CO Far ADYaiaexNO"9migmSoatemmtofHwddApd 8do&ffowhsuMbewwamd: a) 8peeldeeeodbtosand duuudammdin erpmWlyatlhattbelend,bgilftmsuma e b) Umeed otthnpaoviewm of 60 Onmmaewould i vWMWbmuddbaditmgo e�DliasC a� e) DedoebkmHetaWYbo�eedwi�patmb�odddee>meatta$ePob&.good.aadwimoatoottl�ie�or �dellYduoJ�mB�m the m6en ofdm diudet ar lhepaepme ofae:oed'mmae, (� 1+ard<ppxLiPemritmgpe�aSbunv aofGromdesoMbeuacbmiAnappli: foraap6o7elp*m*,{gr a bmam o ll mmg dva mmad th m e ioomde a emmmept dmpnehntay bawtbapeapsed d mge ebelinot be ee9ymmo debtmmW anm me matiagnmw�eg twe to�edebboeboodm aeoerdeooe wi& Setdoa 9.4�f Pmmetr.Sade a mtamemdeauld mdode ue}hmaoe b thelblbwiggtrllada: a) 90d4aOmWkofcammnviiy=*sonedbytbegopcs4 W Tiegowandaft,%dwjoipwjdaSadloft c) Adequaoyofttllb mdodbrpohiioeerviae� Q hm"on me neemd ohvhocmK mdndiag dnmeae; e) Nalo bmbood ahpaoter.end fj Pobdw Huai impeet,hwh ft hoped on GYry to baee and cuvk7mem. ( ) Far,naompr�vsra�e>beemeaogimofawarmodurtebbomeeppliamehoddmkrtolr.o.l� P gdm appdintlenr to the Heard ofAppede fovalvles 26 properly have bas shy wn tW pedllin omjsouldednatanafimedOmoppHandanmtheFaliia Petitiamm Mlolwl Meyer,Titglee pry p Same res petAbner Addmerl)HeY Sliest 9everH.MA 019: Aftoor Tea &Mw Bmdl•none edeveb amen.can ]?mail: S Sipanme: Data bm Z7,Y011i y/ Date: (AeemY/aeieieYFMrtre3oearpeiatl • • Ute + •600H M.Drover, A TRUE Add me 27 Gen9resa St 4414.Salem.MA 0197! A7TWr Tabybms 978 a 088 Date ,Z018 CrrV CLMX DATE DPCD DAT$ Yhk orvind Wp&whm mot beflleduilk dee GO,art { STATEM1s1Pf OF GRO tNnc The petitioner is lite cmrmt owner ofthe property at 1-3 Best Collins Strad(ibe"PmperVy which is the sift ofthe crow closed Nord 2 Social Club. The land area comaists of 41,834 sti end hPW0dIyoomq4W by a one."eemarate block strwwm 1Le propa{y 1s loodW in tbo Residential One(R-1)zoning district It is the Paddonees intention to dmwM the striating strochue and to construct eight residential dwelft uodts in siogle and two family dw llinga. Tho proposed redevelopmerg of dw property will provide Pairing whWh ecmbrms with the req ummema ofthe Zoning Ordinan To ocnsnuot mutUiple stroo0mea en a odnglo property is not allowed in lbs R-1 delict,however, the cnrtrnt use ere a antral dub is legally Thwcfcre,the chop to ibe less ddrimentd.ncn-ocaftmg muiWo dwelling residential use n allowed by Sped Permits under Seodom 3.3.2 ofthe Ordi umm 110pro*also mgtrlses varitmc es from eolum dicasoaond rap»retests ofle Ordinance. Moet=%*..the lot area per dwelling unit required is 15,000 st per unit and the proposed dOvOWPOOM provides 5,300 s.£par noir. In addition,lite edatiag lot,which pedatatba Zoning Otdmesm has 94.5 feet of footage along East Collins Street where 100 fact is rephad,The p+opoeal also requires a variate firms the requires the buildings on a lot be a mid of 40 feet upon.In this beta rce the minim un distance proposed is 25 feet Finally.d the hdgbt of the building is leas tires the allowed 35 i4 cacti Wding does eaoeod the hdght limitation of two and one halfstaues,requiring a varnsooe firm tient provision. These is a little question tbat the lend at 1-3 Fast Collins Street is affected by special conditions that do not affect otlwr lots in the sunomxling neighboaitood, A dud portion ofihe 1'mpetyis salt mmah tend coastal duce®d the ent?se arts lice w11ti the flood pricers In addition, most ofto lead is wifhm the jurisdiction ofthe Commonwealth ofMessad nit ander Cbuptcr 91. lam,the sib is nxvesad by ea eeaemeod fe the nahual gas line which will be oats, I I in thenear featme.Finally,the land is located in the mat restrictive ming district, but surrounded by districts that aro leas restrictive,77teae conditions make the devdopment of the shee Vnalve and challenging. The comet use ofthe building w a social dub is no longer viable as evidenced by is reexnt dooms du to declining membership.The existing building cannot be momstrocted for moom poWn under oarnent flood plain sta derda.In order to redevelop the properly for a rerkfauM momatstent wit tire so mtmdtg ndgbborbaod,count coastal conahvetion dandads end the Aar reguhatccy and environmental oonattaints act f m&above require a Muk feud of deauly. Wrdwtt Ste required relief to allow that level of density,the ptitiemrr will be enable to convert dw Pmpaty to say economically productive use,sealing a bardsl ip for him.The puposed density ofthe projem is signmoody Ion to the average density of dosuroendiog nol&oabood,so the relief req»eamd could be granted without detriment to the public goad and would not depart significantly fan the fired of the Orditw=or the did riot Mmiudovd middleof a opmmt few ptopaq will have dw bene&of ding a commmaal uae m the • �paoj�Rill provide adexNetes paddng far the X&knb end ft trttfiic impact vviU not be stdficant tc the prior ase aga social clab. As part of ft development,the bench and coastal dune will be chened up. 1w majority of the lotffiotise madypaved wWbeconverted.toopen grow apace.therftbVwvia&themtmal asd dretaW IrnwHy,tbepao ad will p xm&mnoh needed hoe m&c City and wifl add AWWWaW tax revenue. For the forOVing teesotts,it is apptopiate and desk"for elm Bond to gmat the rdW A �. H CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL 120 WAumiG,nm Snmr.s u&, oJW:4 P 2! 13 1Cnimmtt�tDWSCoty TEM-97& x: 745-9595♦Fi97&740 984�g # A TACE COPY TTEST CITY�6Lt ': KA Eft IIAW `-� .[ c��yvi January 4,2017 e Rx DICiam SALEM MASS. City of Salm Board of Appeals A petition of MICHAEL MEYER, TRUSTEE, regaesdng a Sperm pmt per Sca i32 Nonaraf0`Mn5W Uaee and Variances per Sea 4.11 Zfte ealamal Rio for the fOdlowing minimam lot area per dweWag uni4 minimum lot frontage, nlinimnm distance between ' CO and maamuna mamba of etoriee to consnuet eight (8) reeidtmtial Witt at 1,3 EAST LLINS STREET(Map 36 Lot 277)(R-1 Zoning District) At the October 19,2016 meeting,a public heating was open pursuant to M.G.L Ch.40A, Testimony was heard on that date and the public hearing was continued on October 19,2016,November 16,2016 and December 21,2016-The heating was closed on December 21,2016 with the following Salem Board of Appeals members Present: Rebecca Curran(Chair),Peter A Copdas,Mike M65y Tom Watkins,and Jimmy Taitainos. The Petitioner is requesting a Special Permit per Sec 3.3.2 Naimonny Uses and Variances per Sea 4.1.1 DrmsArtoaa! Rqxkwnw for the following minimum lot area per dwelling snit, minimum lot frontage, minimum distance between buildings,and maximum number of stories to construct eight(8)residential unite. Statements of fact: 1. Attorney Grover presented the petition on behalf of the petitioner. Dan McciaWE of Seger Architects, of Salem, MA and Scott Cameron, CE of Morin-Cameron Group, of Danvers, MAMA also presented testimony. 2. In Match of 2015,the petitioner withdrew an application without prejudice for a development at this location for a residential use and submitted a tttgni6cantiy different application on September 27,2016 for review. 3. In the Petition chte-stamped September 27, 2016, the Petitioner n quested a Special Permit per Sea per Sea 3.32 Noruw*mq Ura of the Salem Zoning Ordinance to change and earring nonconfomuog use of a social club to another nonconforming use of multi-Sin* residential units. The petitioner is also requesting Variances for relief from Sea 4.1.1 Table SfDiiee& rtal Rapabws for minimum lot area Per dwelling wait,minimma lot frontage,minimum distance between buildings and number of stories. ' 4. The property is located at the Planters Street and Fast Collins Sam in an R-1 Zoning District The Previous use of the property was the Ward 2 Social Club. A TRUE COPYATTESJ ` 5. At the October 19,2016 public heating testimony was head sad the properly had lost its grandfathered non-confomdag status The ftj firm the City Solicitor to clatify whether property inion had lost its a � The ate_ conform*status of the property deterinines whether the Board has e a �.cbaoge in the property use from one now-conforming use to another non-confoatiemg use by special permit 6. On November 16, 2016, the petitioner requested a continuation of the public hearing to the neat regularly scheduled meeting on December 21,2016.No testimony was heard at this meeting 7. At the December 21,2016 meeting,the Board reviewed and discussed the legal opinion fiom the City Solicitor dated December 4,2016. 8. The following are conclusions from the legal opinion relevant to the issues discussed at the October 19,2016 public heating. • The use of the property is entitled to protected status as a legally non-conforming use ander M.G.I.Ch.40A Section 6. • The club did not abandon its use of the property is January 2014,when it dosed the building to the public. • The sale of the property to the petitioner does not constitute a termination of the use of the per• • It is within the authority of the City of Salem Board of Appeals to issue a special pemtit to allow a non-conforming use of the Property to continue, provided that the Board issues a fording that the proposed new use of the Property, is less defrimmtal than the existing nonconforming use. 9. Delinquent property taxes were paid by the petitioner before the December 21,2016 public heating. 10. On November 30, 1948, various residents of the City of Salem finned the Club as a Massachusetts not-for-Pto5t corporation organized under M.G.I. Ch. 180 fur the purpose of promoting brotherhood and chanty in the Ward 1T District of Salem. 11. On November 1, 1956, the Club acquired tide to the Property for the purpose of conatructing building to setae as the location for the charitable activities of its membership including it place to hold meetings and place where the pub&would be able to hold events.At this time,the property was domed in a Single Residence District-B and the 1955 Ordinance was is effect Pursuant to Sec.4.B.5 the Use of the Property was a permitted use in the Single Residence Barnet, but is no longer a permitted use by right in the Rl-Zoning District The Social Chub is an earring non-conforming use. (See Opinion 1-3 E.Collins St Dated Dec,4,2016 for finthet disanion). 12. On May 21,2015,the Club sold the property to the petitioner.The lead area of the property consists of 41,834 square feet and has a one-story concrete block structure.The eaiedog structure does not meet the current floodplain construction standards. 13. The petitionet is proposing to change the use of the property from the non-confonniog use of a social club to multi-fguily residential dwelling units. 14. The petitioner testifies that the proposed residential use of the property is mote consistent with the surrounding neighborhood use than the existing social dub and bar room 15. The existing building cannot be reconstructed for another purpose under the Chapter 91 requirements due to current flood plain construction standards.As such,the petitioner is proposing to demolish the A T UE CO.P'i Ward 2 Social Club structure to construct eight(8)residential dwelling dWeDing � �/C� CLE/ 16. The proposed eight(8)mita will be divided into three(3)duplexes and twoj� .` The petitioner testifies that the proposed residential use is consistent with the use of the �8 neighborhood and the dwelling unit arrangement of single and two-family units is Consippgnt cvich the Wargement of dwelling units within the sutmmdiag neighborhood. 17. The petitioner is requesting a special permit per Sec 33.2 Nonconforming Usea to change the enatmg non-conforming use of the property from the existing Ward 2 Social Club to multi-family cadential dwelling mite in Nagle and two(2)family amingmoents. 18. The petitioner expects to prande future public access to the waterfront dmm&the property,in a location determined by the Pli aing Board and Massachusetts Department of Environmental Protection(DPP)through the Chapter 91 permitting process. 19. The proposed plan is pig fourteen(14)parking spaces where the requitement is twelve(12) Parking apnoea.The Salem Zoning Ordinance requires one and a half(1.5)padmmg spaces per dwelling unit 20. Currently,thea is one long cutbcnt with approximately thirty(30)padring spaces on the property. The petitioner is pmposiag to reduce the number of parking spaceN and fomnlixe a corbcot that meets the dimensional requirement of a marimum of 20'feet for a residential use, 21. Mt.Cameron,CE of Maria-Cameron Group,of Dances,MA testified that the existing public utilities and other public services are adequate to support the proposed eight(8)residential mita. 22. Mr.Cameron,CE of Matin-Cameron Group,of Danvers,MA testified that the impacts on the natural envitomment,including drainage would be positive.The petitioner is proposing to reduce the existing impervious mwEice from 30°/s to 15°/a The property will comply with all stormwater management requirements. 23. Thee existing Ward 2 Social Club structure is 5,200 square feet at 12.5%lot coverage.In comparison, the five(5)proposed residential structures are it torsi of 6,400 square fxet at 13.3%lot coverage.Mr. Cameron testifies that the proposed structures will have similar lot cmeamge and footprmr aeras as the existing structure 24. Mr.Cameron testifies that existing avetage lot area per dwelling unit in the neighborhood one(1) dwelling 17e Z600 square feet Tore petitioner is ptoposing a lot area per dwelling unit of 5,229 square Seer,making the Proposed development approximately 30°/s less dense than neighboring dwel1ing uni 25. Mt Cameron testifies that the spacing between bmldmgs in the existing ne0bothood is approximately ten(10)to twenty(20)feet The proposed distance between the buildings at 1-3 FAst Collins Street is twenty-five(25)feet at the narrowest point 26. The footprints of the proposed buildings are comparable to the existing footprints of the buildings in the surrounding neighborhood 27. Mr. Ricciatelli, of Sega Architects testified that the proposed building footprints, msasing and architectural design are consistent with the atchitectmal details,massing,and form of the surrounding Aj&a neigbborbood. For eaatoPle, the proposed buildings incorporate C. 1. "A"shaped roof ms.The building facades ate slender with tine remaining mat All of these details fit with the existing character of the dwelling u����i 28.The aaaagement of the buildings is in response to the public request eQyetsitii = 1� of the wfitctfimt vp ilii 29. The potential fiscal impact,including impact on the City tax base is positive 30. The petitioner is also requesting hour (4) variance minimum lot frontage,minimum distance between buildings minim»md maximum n lot area per dwelling unit, and anoobee of stories. 31. The Petitioner,proposed the following deviations from the dimensional Ordmanee a)s lot area its of the Zoning per dwelling unit of 5,300 square Seer where the requirement per the Zoning Ordinance is 15,000 square feet; b) 94.5 feet of ftontsge where the requirement per the ZoningOrdinance is 100 square feet of hum fiontage;c)a minimum of 25 feet of distance between is wh�erre�the minimum required distance is 40 feet d)Three (3) stories where the maxim requirement 32. The petitioner testifies that the special builconditions and circumstances that ce structam• cePd9 affect the land, �°g invoked,generally not affecting other lands,buildings and structures in the same distad is that a significant portion of the Property is salt match and coastal dime and the entire site lies within the floodplain.Further,the alts is traversed by an easement for the natural gas line,which will be constructed in the neat future.In addition,most of the land is within the juridic im of the Comwonwed&of Massachusetts under Chapter 91.The land is also located in the moat reattiet zoning district,but surrounding by districts that am less restrictive.These ' ProeM Pmake the development of the site expensive and challeggiog. n conditions of this 33. The petitioner testifies that the social club is no longer viable as evidenced by its recent closure due to declining membership.Further the existing building cannot be reconstructed for anotherpurpose under the Chapter 91 requirements due to current flood phou standards.The liberal enforcement of the zonin .g ordinance would allow the property owner to construct a angle-hmily hoto mique conditions of the land, the cost of the required specialized construction would a the madmt value of the home for the area. s 34. The petitioner proposes a density of 5,300 square fleet where the requi anent is 15,000 equate feet dwelling unit and testifies that the .A Proposed density of eight(�residential dwelling mita is needed.A er eng�e family use,which is an allowable use by tight on this property,is not an economically feasible use and creates an economic hardship for the petitioner due to die cost of construction needed for this property. 35. The petitioner is proposing 94.5 feet of frontage where the requirement per the Zoning Ordinance is 100 square feet of linear frontage.The finntage is a pm-existing non-confirming dimension with no alternative to provide additional linear frontage 36.Ike petitioner is proposing 25'-30'feet of distance between budistance is 40 Sect ildings where the minimum inquired 37. The petitioner is proposing to construct dwelling units that are three(3)stories tather than the maximum requirement of 2.5 stories.The proposed living areas am raised with paddag proposed undemesth the building by necessity because the entire property is located within the flood zone. Coastal construction requires that the first floor be elevated above the ten(10)foot flood elevation. x A RUE COPY ATTEST t � � A The dwelling unit mean rafter height does not exceed the 35'foot 4LERK 39. At the public hearings, ben (10) residents spoke in opposition to the prop&Ajt8MAM&Sber spoke in support of the petition. The Salem Boatel of Appeals,atbet careful consideration of the evidence presented at the public hearing,and after thorough review of the petition, including the application narrative and plans, and the petitioner's presentation and public testimony, makes the following findings that the proposed project meets the provisions of the City of Salem Zoning Ordinance: Findings for Variance: 1. The specialconditions and circumstances that especially affecting land,bulling or structure involved generally not affecting other lands,buildings,and stmcmres in the rams district n that a significant partim of the property is sak march and coastal dune and the entice site No within the good plain, Further,the site is traversed by an easement for the natural gas line,which wl be constructed in the neat future.In addition,most of the land is within the jurisdiction of the Commonwenitb of hlassachuseus under Chapter 91.The land is also located in the most restrict zoning district,but surrounding by districts that are less reductive.These unique conditions of this property make the development of the site expensive and challenging. Z The literal enforcement of the provisions of the Ordinance would involve substantial hardship as the cost of building a single-family home on the property would far exceed the market value of the ares. 3. Desirable relief may be granted without substantial detriment to the publiegood,'and without nullifying or substantially derogating from the intent of the district or the purpose of the ordinance. Findings for Special Permit 1. The proposed change use of a non-conforming social club to another non-conforming use of multi- 6twly residential uses in a single and two (2)family arrangement is not subsbsntially more detrimental thin the �P use to the impact on the social, economic or ceanmumity needs servedby Z There are no impacts on ttdk flow and safety, nciudmg pa8ting and loading as them are fourteen (14) on-Site padring spaces that exceed the minimum parking requirements of the Salem Zoning Ordinance. 3. The capacity of the utilities and public services an not Opificandy affected by the project 4. There are net positive impacts on the natural environment,iwk d*drainage as the eststing property has approximately 12,000 square feet of existing pavement surface. The petitioner is proposing to reduce the impervious surface on the property to approximately 5,500 sgmft feet 5. The proposal improves neighborhood c atacbet as it improves the property and the residential use is consistent with the use of the surrounding neighborhood. The dwelling unit arrangement of single and two- family units is consistent with the arrangement of dwelling units within the suiroundmg a borhood. Further.,igh proposed building footprints, massing, density and architectural design are consistent with the architectural details,massing,density and form of the surrounding neighborhood, 6. The potential fiscal impact,including impact on the City tax base is positive. 0a the basis of the above smten mts of&cts and fitadmgs,the Salem Board of Appeals voted five (Rebeccs Curren tChait),Peter A Cope]a J=my Ts�os,Mie Duffy,and Tom Watkins)in favor and none(0) opposed,to gtant a Special Fetmitper Ja 3.3.2Nwawfff=*Uwand Variances pet See 4.1.1 Dissei Lvd o� Zoning ,for minimum lot area per dwelling unit,minimum lot finmmge, minumun buildings,and maximum number of stories,to consunct eight(8)residential units subject to the falloviug terms,conditions and safeguards 1. The Petitioner shall comply with all dty and state statutes,ordinances,codes and regulations. 2. All construction shall be done as per the plans and dimensions submitted to and approved by the Buildiag Commissioner 3. �eredre d to. ents of the Salem Fite Department relative to smoke and fire safety shall be str y 4. Petitioner shall obtain a building permit prior to beginning airy constmcdon, 5. Exterior finishes of new construction shall be in harmony with the existing sttucnne 6. A Certificate of Inspection shad be obtained. 7. A Certificate of Occupancy shall be obtained. & Petitioner shall obtain street numbering from the City of Salem Assessor's Office and shall display said member so as to be visible finju the street 9. Petitioner is to obtain approval finan any City Board or Commission not limited to,the planning Board. hsving lesson including,but Special Condition:- I- ondition:1. The applicant shall provide public access to the`water&ont per DEP Chapter 91 Howse requirements. Rebecca Cutffitt,Chair Board of Appeals A COPY OF THIS DECISION HAS BEEN FMED WITH TIM PLANNING BOARD AND THE My CLERK AA4 ydsl h,*ice m Sm"n 6f Me Mater Cwwr Low cb#ar 40.9 sed Add br fi"moth:zo fpwaia�WV ofs ANnsis,�J �Ofdw QY CN*,E Pomw to d o Alaum Gm and Lwu G*kr4a4 sappy* i1, tdr Vmr sw dr g�O'Dea& AV 0fdr 'dsmng dr 0''A1*rV cant Na iwx iFtnrmvd Ar Brwer SO4 A TRUE COPY ATTEST c CLi C /UC CL RK � SALEM MASS. / . CUNNINGHAM_, MACHANIC, CETLIN,JOHNSON, HARVEY & TENNEY Lb ATTORNEYS AT, LAW Daniel M.Cunningham(1947-2013) Of Counsel: Scott L.Mechanic Lakewood Office Park. Edward c Uehlein(19114003) Data A.Ceain t 220 North Main Street,Ste.301 without M.Zell Dodd C.Johnson(19494000) Natick,Massachusetts 01760-1100 - Richard B.Schafer Peter P.Haroey Richard A.Zucker Robert F.Tenney (508)651-7524 (781)237-7030 Joanne D.Lew Robert J.Riccio FAX;(508)653-0119 Paralegals: Holly C..Anderson email:emlaW@emlaw.net .Jenny Hall Maltais Aute C. .Sullivag www.cunninghammachanic.com - Joanne Kremar Zen Megan H.Mnchin Paula I.Weaver - Steven G.Manchini t - Ari Y.Antonin - John D.Hadden Q t Also Admitted in New Hampshire 'Katherine Y.Goff Q Also Admitted in Vermont :Erin A.Goss Edward J.Doherty IV January 20, 2017 Cheryl A. LaPointe, City Clerk City of Salem MA Salem City Hall 93 Washington Street Salem, MA 01970 Re: Notice of Appeal.of Decision of the City of Salem Board of Appeals, by Scott Truhart. et al Petition Dt: September 27, 2016 ►"„r;" ' Petitioner: Michael Meyer, Trustee Owner: Michael Meyer,Trustee Premises: 1-3 East Collins.Street n� Decision Dt: January 4, 2017 To the City Clerk Pursuant to MGL chapter 40A, §17, you are hereby given notice that Scott Truhart, et al, by and through their undersigned attorney, have appealed the above-referenced Decision of the City of Salem Board of Appeals, which Decision was both dated and filed with your office on January 4, 2017. I have enclosed herewith a copy of the Complaint which has been filed in the Land Court, having been assigned Docket No. 17MISC000029. ��y r i Kindly date-stamp the copy of this letter for return to the undersigned. Thank you. Very truly yours, CUNNINGHAM, MACHANIC, CETLIN, JOHN ON, HARNEY&TENNEY LLP WilliamPil cc. Clients WMZ/49674 7193-0001 Commonwealth of Massachusetts Land Court 17 MISC 000029 Department of the Trial Court tallo cauRr Case No. F1l Fti Civil Cover Sheet 1011 JAPd 20 First Plaintiff Scott Truhart F 12' 4 First Defendant City of$aiem Board of Anneals Locus Address/Description 1-3 East Collins Street City/Town Salem Insfructionc . Part I-To Be Completed by Plaintiff(s),Counsel: FOR ALL MISCELLANEOUS CASES(EXCEPT cases rded.pursuant to Servicemembers CW Reliet t): 1. Using the list below,please number;with the Number 1;the main cause of action on wig you b your complaint n IA and rn _ 2. Place an"X"next to each other cause of action in your complaint. and C/):x § ' 3. Is this complaint verified? O Yes ONO and CA 4. Are there any related cases filed in the Land Court Department 7 Dyes XONo If yes,please provide the Case No,(s): - gZENEnf al from Zoning/Planning Board MAD Determine Fiduciary Authority .c.40A,§ 17' - G.L.c.740,§27 - al from Planning Board _ PAR Partition - c.41,§81BB G.L.c.241 ty ofZoning RF,D .. 'Redemption cc.240,§ 14A,185,§1(j 55) G.L.c.60,§76 cement of Zoning #Mmine ific Performance of Contracts .40A,§7 .c.185,§1(k) HCOT Remove Cloud on Title mtine Municipal Boundaries G.L.c.240,§6-10 L.C.42,§12 DOM Discharge of Old Mortgage Boundaries of Flats - G.L.c.240,§15 c.240,§19 - LVT Affirm Tax Foreclosure-Land of CNC Certiorari-G.L.c.249,§4 - - - Low Value-G.L:o.60,§80B MAN Mandamus-G.L.Q 249,§5 MTB Try Title G.L.c.240,§ 1-5TRE Trespass to Real Estate Involving Title-G.L.c.185,§I(o) MWA Recover Freehold Estate(Writ of Entry)-G.L.c.237 Equitable Action Involving Any EQA Right,Title or Interest in Lmd MRC Determine Validity of Encumbrmces G.L.c.185,§1(k) G.L.c.240,§11-14 AHA Affordable Housing Appeal CER Enforce Restrictions G.L.c.40B,§21 G.L.c.240,§10A-10C - OTA Other 09/2013 l _ Part 11-Uniform Counsel Certificate-to be filled out by Plaintiff(s)'Counsel.at the time of initial filing. All other counsel shall file within.thirty(30)days of initial entry into the case,whether by answer,motion,appearance or other pleading. FOR ALL MISCELLANEOUS CASES(EXCEPT Mortgage Foreclosures under the Servicemembera Civil Relief Act) I am attomeyof-record for: Scott Truhart,and all Plaintiffs QX Plaintiff QDefendant in the above-entitled matter. If Defendant(s)Attorney,please provide Case No. A. In accordance with Rules of the Supreme Judicial Uniform Rules on Dispute Resolution(SIC.Rule LIS) which states in part:"...Attorneys shall: provide their clients with this information about court-connected dispute resolution;discuss with their clients the advantages and disadvantages of the various methods of dispute resolution;and certify their compliance with this requirement on the civil cover sheet or its equivalent..." B. In accordance with Land Court Standing Order 1-12,I certify that I am aware of the requirement to, "...serve a copy of the"Limited Assistance Representation (LAR)Information Sheet"upon all defendants at the same time as service of the summons, complaint, and civil cover sheet is made", and I will comply with this requirement. I hereby certify my compliance with these requireme BBO# 554135 1gnatureo tmrncyo- eco Date: 1/20/2017 William hL Zell,Esq. Please Print Name Exempt Cases: Tax Foreclosures,Mortgage Foreclosures under the Servicemembers Civil Relief Act and all cases related to original and subsequent registration under G.L.G 185,§l. 09/2013 -2- DOCKET NUMBER APPEARANCE OF COUNSEL Commonwealth of Massachusetts Land Court Department CASE NAME Scott Truhart, at at VS. City of Salem Board of Appeals and Michael Meyer, Trustee of 1-3 East Collins Street Realty Trust To The Recorder: Please enter my appearance as attorney for the Plaintiffs, Scott Truhart, Tricia Truhart, Ma E. Knight, Charles E. Knight Kim B. Suries Timothy M Connell and Adam Craig in the above numbered court action. ATTORNEY NAME - B.B.O.NO.(Required) William M.Zall 554135 ATTORNEY FIRM OR AGENCY TELEPHONE NO. Cunningham, Machanic, Cetlin, Johnson, Harney& Tenney, LP (508)651-7524 STREETADDRESS CELL PHONE NO. 220 North Main Street, Suite, 301 (508)789-5550 CITY/TOWN STATEZIP CODE E-MAILADDRESS Natick MA 01760 bzall@cmlaw.net January 20,2017 DATE SI TORE OF ATTORNEY LC-001 (062016) - www.mass.gov/courtsAandcourt Page 1 of 1 LAND COURT- COMMONWEALTH OF MASSACHUSETTS FILED LAND COURT 1017 JAN 20 PM 12= 44 DEPARTMENT OF THE TRIAL COURT Essex, ss Scott Truhart, Tricia Truhart, Mary E. Knight, Charles E. Knight, Kim B. Surles, Timothy M. Connell, and Adam Craig, Plaintiffs V. Zoning Board of Appeals for the City of Salem, and Rebecca Curran, Peter Copelas, Thomas Watkins, Mike Duffy, James Tsitsinos,James Hacker and Paul Viccica, as they constitute the City of Salem Board Appeals, and Michael Meyer, Trustee of 1-3 East Collins Street Realty Trust - Defendants Complaint Pursuant to MGLA C.40A, §17 Appealing a Zoning Board Decision 1. The Plaintiffs, Scott and Tricia Truhar4 are natural person residing at 4 East Collins Street, Salem,Massachusetts. 2. The Plaintiffs,Mary E. Knight and Charles E. Knight, are natural persons residing at 5 East Collins Street, Salem,Massachusetts. 3. The Plaintiffs,Kim B. Surles, is a natural person residing at 27 Planters Street, Salem, Massachusetts. 4. The Plaintiff, Timothy M. Connell, is a natural person residing at 6 East Collins Street, Salem,Massachusetts. 47807/Collins St.ZBA Complaint 1 5. The Plaintiff,Adam Craig,is a natural person residing at 29 Planters Street, Salem, Massachusetts. 6. The Defendant, City of Salem Board of Appeals (hereinafter, the"Salem ZBA'), is a permit granting authority in the City of Salem,Massachusetts, and has a usual place of business at 120 Washington Street, Salem, Massachusetts. 7. The Defendants,Rebecca Curran,Peter Copelas, Thomas Watkins,Mike Duffy and James Tsitsinos,James Hacker and Paul Viccica, are herein named in their capacity as members or alternates of the Salem ZBA. 8. The Defendant, Michael Meyer, Trustee of 1-3 East Collins Street Realty Trust ("Petitioner"), is the purported owner of real property located at 1-3 East Collins Street, Salem,Massachusetts('Premises'). 9. Michael Meyer has a last known residential address of 11 Bay Street,Beverly, Massachusetts. 10. The Petitioner purportedly acquired title to the Premises by deed, dated May 21, 2015, and recorded with the Essex South District Registry of Deeds in Book, 34073,Page 359. A true and correct copy of the aforementioned deed is attached hereto as Exhibit A. 11. Pursuant to the City of Salem Zoning Ordinance("Ordinance"-),the Premises are located in an RI Zoning District. 12. Pursuant to the Ordinance, the only residential use within an R Zoning District which is allowed as of right is that of a single family dwelling. 13. Pursuant to §3.3.1 of the Ordinance, where a nonconforming use lawfully existed prior to adoption of the Ordinance, such nonconforming use may continue,provided that no modification of the use is accomplished unless authorized under the Ordinance. 14. Prior to adoption of the Ordinance,a social club lawfully existed at the Premises. 15. The social club continued to operate at the Premises subsequent to adoption-of-the--- Ordinance under the protected status granted pursuant to the aforesaid§3.3.1. 16. Pursuant to §3.3.2 of the Ordinance, the Salem ZBA may allow a ehange-firom one-- nonconforming ne—nonconforming use to another nonconforming use under certain conditions cited therein. 17. In order to allow a change under§3.3.2 of the Ordinance, the protected status afforded to the pre-existing nonconforming use of the Premises must not have been extinguished and, thus,the use must have been lawfully in existence at the time of the Petition. 47807/Collins St.ZBA Complaint 2 18. Pursuant to § 3.3.6 of the Ordinance, a nonconforming use which has been abandoned, or not used for a period of two years, shall lose its protected status and be subject to all of the provisions of the Ordinance. 19. On or about September 27, 2016,the Petitioner filed a petition with the Salem ZBA, seeking a Special Permit to change the use of the Premises from one nonconforming use to another nonconforming use(said petition hereinafter referred to as the"Petition"). A true and correct copy of the Petition is attached hereto as Exhibit B. 20. In addition to the aforementioned Special Permit, the Petition also sought a Variance from certain dimensional requirements under the Ordinance. 21. Pursuant to public notice issued pursuant to applicable provisions of MGLA C.40A, a public hearing on the Petition was commenced on October 19, 2016, and continued from time to time until December 21,2016. 22. Upon information and belief,the pre-existing nonconforming use of the Premises had been abandoned by the owner thereof. 23. Upon information and belief, the pre-existing nonconforming use of the Premises was not used for a period of at least two years prior to the filing of the Petition.- 24. The protected status afforded the nonconforming use of the Premises was-extinguished-by------:— abandonment. 25. The protected status afforded the nonconforming use of the Premises was extinguished by non-use for a period of two years prior to the filing of the Petition. 26. By virtue of the loss of protected status of the nonconforming use of the Premises, the Petitioner was not eligible for consideration of change to another nonconforming use under§3.3.2 of the Ordinance. 27. By virtue of the loss of protected status of the nonconforming use of the Premises,use of the Premises must conform with the requirements of the RI Zoning District as allowed by the Ordinance. . --- - - - 28. On January 4,2017, the Salem ZBA filed its decision with the Salem City Clerk, allowing the relief requested in the Petition(the"Decision").-A certifiedcopy-of-the - - ---- Decision is attached hereto as Exhibit C. 29. Notwithstanding the lack of supporting evidence, the"Statements of fact"contained in the Decision erroneously concluded from a"legal opinion"that the pre-existing nonconforming use of the Premises had not been abandoned. 47807/Collins St ZBA Complaint 3 30. The Decision granting the Special Permit made no finding addressing whether or not the right to continue the pre-existing nonconforming use at the Premises had been extinguished due to non-use for a period of two years. 31. Notwithstanding the lack of supporting evidence, the Decision granting the Special Permit erroneously found that the requested nonconforming use was not substantially more detrimental to the neighborhood than the purportedly existing non-conforming use. 32.Notwithstanding the lack of supporting evidence, the Decision granting the Variance from dimensional requirements of the Ordinance, the ZBA erroneously found that "literal enforcement of the provisions of the Ordinance would involve substantial hardship as the cost of building a single-family home on the property would far exceed the market value of the area." 33. Upon information and belief, construction of a single family residence in conformance with the Ordinance would require significantly fewer variances than those which the Salem ZBA allowed in granting construction of the multi-unit structures. 34. The Decision granting the Variance from dimensional requirements for reconstruction after voluntary demolition, which variance must be sought by special permit. 35. The Plaintiffs are aggrieved by the Decision. 36. The Decision was not supported by substantial evidence. 37. The Decision exceeded the authority of the Salem ZBA;was based upon legally untenable grounds.and was otherwise arbitrary, capricious and unreasonable. COUNT TO ANNUL DECISION GRANTING NONCONFORMING-USE AS PETITIONER'S RIGHT TO CONTINUED NONCONFORMING USE WAS EXTINGUISHED BY ABANDONMENT (Ordinance 33.6; M.G.L C.40A, §6). 38. The Plaintiffs reallege and incorporate by reference the allegations contained in the above paragraphs. 39. Pursuant to §3.3.6, a nonconforming use which has been abandoned or not used for a period of two years, shall lose its protected status and be subject to all of the provisions of the Ordinance. 40. The nonconforming use of the Premises was abandoned. 47807/Collins St.ZBA Complaint 4 COUNT H TO ANNUL DECISION GRANTING NONCONFORMING USE AS PETITIONER'S RIGHT TO CONTINUE NONCONFORMING USE WAS EXTINGUISHED BY NON-USE FOR PERIOD OF TWO YEARS (Ordinance 3.3.6; M.G.L C.40A, §6) 41. The Plaintiffs reallege and incorporate by reference the allegations contained in the above paragraphs. 42. Pursuant to §3.3.6, a nonconforming use which has been abandoned or not used for a period of two years, shall lose its protected status and be subject to all of the provisions of the Ordinance. 43. The Premises had not been used for the nonconforming use for a period of at least two years prior to the filing of the Petition. i COUNT HI TO ANNUL DECISION GRANTING NONCONFORMING USE AS PROPOSED USE IS NOT LESS DETRIMENTAL THAN PURPORTEDLY EXISTING NONCONFORMING USE (Ordinance 3.3.2; M.G.L C.40A, §6) 44. The Plaintiffs reallege and incorporate by reference the allegations contained in the above paragraphs. 45. To the extent, if any,that the Petitioner's right to continue the purportedly existing nonconforming use is found to have not been extinguished, then Section 3.3.2 of the Ordinance requires that any change to another nonconforming use be"less detrimental". 46. The nonconforming use granted by the Decision is not less detrimental-than-the— purportedly et imentai_thanthe__purportedly existing nonconforming use. COUNT IV TO ANNUL DECISION GRANTING VARIANCES FROM - - - - - -- DIMENSIONAL REQUIREMENTS AS REQUISITE HARDSHIP IS NOT PRESENT 47. The Plaintiffs reallege and incorporate by reference the allegations contained in the above paragraphs. 48. The Petitioner has not shown the existence of requisite hardships to support granted variances, where far fewer,if any,variances would be required to construct a structure within the requirements of the Ordinance. 47807/Collins St ZBA Complaint 5 WHEREFORE, the plaintiff demands judgment as follows: a. That any pre-existing non-conforming use of the Premises be declared lost due to non-use; b. That any pre-existing non-conforming use of the Premises be declared lost due to abandonment; C. That the Decision of the City of Salem Board of Appeals allowing the Petitioner to change from one non-conforming use to another non-conforming use be annulled; d. That the Premises be used only in accordance with the City of Salem Zoning Ordinance; and C. That this Court grant such further relief as it deems necessary and proper. Respectfully submitted, The Pl ' tiffs, By their ttom . WilliaV. Zall,�B�BO 135 Email: bzall@cmlaw.net CUNNINGHAM,MACHANIC; CETLIN,JOHNSON,&HARNEY LLP 220 North Main Street,Suite 301 Natick,MA 01760 _ TEL: (508)651-7524 - Dated: FAX: (508)653-0119 47807/Collins St.ZBA Complaint 6 EXHIBIT A Return to: IIIIII11121111IIII'N X50�ESSEft#366 6k/2015 02:15 ki 46733Pg;359 (Space Above This Line Reserved For Registry of Deeds Use} i QUITCLAIM DEED WARD H SOCIAL CLUB OF SALEM,INC.,a Massachusetts Corporation,with a principal place of business at 1-3 East Collins Street, Salem,Massachusetts 01970, b for nominal consideration, PD ` d grants to MICHAEL MEYER,TRUSTEE OF 1-3 EAST COLLINS STREET REALTY q TRUST, under Declaration of Trust dated May 1, 2015, as evidenced by a Trustee Certificate recorded herewith, cc 4 with QUITCLAIM COVENANTS d z a certain parcel of land situated in Salem, Essex County,Massachusetts,shown on a Plan entitled: "NEW ENGLAND POWER SERVICE COMPANY PART OF NEW ENGLAND ELECTRIC SYSTEM BOSTON, MASS.,NEW ENGLAND POWER COMPANY PLAN OF q LAND IN SALEM,MASSACHUSETTS TO BE CONVEYED TO WARD II SOCIAL CLUB OF SALEM,INC.,as Deed dated November 1, 1956 and recorded with Essex South'Distri t Registryy of isis attached to U � of Deeds at Book 4334, Page 560, and bounded and described as follows: Beginning at the Northwesterly corner of said parcel at other land of the Grantor at a point on the Easterly side of East Collins Street; said point being 21.6 feet distant Southwesterly from an iron pipe at the Southerly intersection of said East Collins Street and Planters Street; thence running Southeasterly 271.80 feet to a point; thence tuning and running Southwesterly 215.6 feet to a point at land now or formerly of Scher—said last two courses and distances being by other land now or formerly of New England Power Company; thence turning and nmmng Northwesterly by said land of Scher, 128 feet to a'point at land now or formerly of Campbell; t1>mw turning and Henning Northeasterly 27 feet to a point; thence turning azul running Northwesterly 150 feet to said East Collins Street—said lest ttwe.comm end distances being by said land of Campbell; thence tuning and running Northeasterly by said East Collins Street 94.5 fact to the point of beginning. Contaitung:41,644 squareficotoff land according to said Plan: . Being the sante premises conveyed by Deed dated November 1, 1956,recorded with the Essex South District Registry of Deeds in Book 4334,Psga,56N This conveyance is subject to all outstanding mortgages and liens of record. This conveyance is also made sabjeetto aw=msts,e ow and reservations afseaord;if M, insofar as the same are in force and applicable. {REMAINDER OF PAGE 1NMMONALLY LEFT BLANK} Executed is a sealed instrument this day ofU�h�__ 2015 WARD II SOCIAL CLUB OF SALEM, INC. BY: Nick Gordon, President COMMONWEALTH OF MASSACHUSETTS Essex,ss. before me the undersigned notary public, personally appeared, Nick Gordon, President of the WARD II SOCIAL CLUB OF SALEM, INC., WHO PROVED TO ME THROUGH SATISFACTORY EVIDENCE OF IDENTIFICATION, WHICH WAS A 014 D L TO BE THE PERSON WHOSE NAME IS SIGNED ON THE PRECEDING INSTRUMENT,AND WHO ACKNOWLEDGED TO ME THAT HE SIGNED IT VOLUNTARILY FOR ITS STATED PURPOSE. NOTARY PUBLIC l My Commission expires: I( + I Ll (j CAROLFTHOMAS. - _. kt"nate,oomemmew Cd Wmedwift MYCmmNtim EON NWOK 14.2019 EXHIBIT B CITY OF SALEM,MASSACHUSETTS BOARD OF APPEALS ' P=0N FORM CITY OF SALEM,MASSACHUSETTS sera BOARD OF APPEALS HA SEP 21 P I: 50 120 WASHINGTON STREET,3ro FLOOR o' SALsK MASSACiitlSMIS 01970 FILE 0 a ��SL�D�of��onalS T CtfkK.SAtEM.MASS, phone:978-619-5641/Pas 978.740-9846 RECEIVED j x>uamr"Dwscou. Etta Schaeffer SmRPlaaver0-0 MAYOR Phonc 97"19-5685/Fos 978-74404 V TO THE BOARD OF APPEALS: I SEP 27 LB,s The Undersigned represent that he/she istare the owners of a certain parcel of land located at DEPT. OF PLANNING 6 COMMUNITY DEVELOPMENT Address:1-3 East Collins Street Zoning District R-1 An applicadmi B being submitted to the Board otAppeal for the fa0owhrg reason(*This statement must describe what you propose to build,the dimensions,the zone property is in,and the zoning iequ¢eincnts.(Erample,. l am proposing to construct a 10'x l0'one sorry addition to my home located at 3 Salem lane,in the R-1 Zanbtg District. 7)re Zmurg Ordinance requires the minimum depth ofthe rearyord to be 30feet The current depth ofmy rear yard is 31fed;the proposed addition would reduce the depth of the rear yard to 11feet.) See Statements of Grounds attached. For this reason I am requesting: (j Vatieoce(s)from provisions of Section 4.1.1 of the Zoning Ordinance,specifically from min. lot area per dwelling un8,min.distance between buildings min.frona90 (Le.minimum depth ofrear yard. What is allowed is 15,000 s.f.,40k 100 ft ((1?sq ft?snvfw? %?),aml what I am proposing is See Statement of Grounds (/t?sq ft?stories?%7). ($)A Special Permit under Section 3.3.2 of the Zoning Ordinance in order,to Change one non conforming use to another less detrimental Iron conforming use. ( )Appeal.of the Decision of the Building Inspector(described below): ( )Comprehensive Permit for constmetion of low or moderate income housing(describe halon): Cttreut Property Use•Social Club Are Lot Dimensions Included?($Yes ( )No Why? Mavk 7ko Fam(&Nome) The Undersigned hereby petitions the Board of Appeals to vary the terms of the Salem Zoning Ordinance and allow the project to be constructed as per the plans submitted,as the enforcement of said Zoning By-Laws would involve practical difoulty or unnecessary hardship to the Undersigned and relief may be granted without substantially derogating from the intent and purpose of the Zoning Ordinance. CITY OF SALEK MASSACHUSETTS BOARD OF APPEALS PETITION FORM The following written statement has been submitted with this application: (ad For all Vmiam requests a written Statement of Hardship demonstrating the following must be attached: a): Special conditions and circumstances that especially affact the land,building,or stmrdme involved, 9e11eta11Y 1101 of sting other lands,buildings,and structures in the acture district, b) Literal enforcement of the provisions of the ordinance would involved substantial hardship to the applicant;and c) Desirable relief may be granted without substantial detriment to the public good,and without nullifying or substantially derogating horn the indent ofthe district or the pmpose of the ordinance. (i For all Special Permit tegnests a Statement of Grounds rust be,attached.An application for a special permit-for a nonconforming use or structure shall include a statement demonstrating how the proposed change sball not be substantially more detrimental than the existing nonconforming use to the neighborhood in accordance with Section 9.4 Special Pewits.Such a statement should include Teferwce to the following criteria a) SOCK economic,or community needs served byThe proposal, b) Tragic flow and safety,including paring and loading; c) Adequacy of utilities ad other public services; d) Impacts on the nanual environment,including drainage; e) Neighborhood charactc,and t) Potential fiscal impact,including impact on City tax base and employment ( ) For all Comprehensive Permits for construction of low or moderate income applicants should refer to M.G.L Ch.40B li 20-23. Previous applications to the Board of Appeals involving this property have been submitted with this petition IOM TheBagftConw&sionercanpmvidedocummtadonofpravioarap&ntionstathepeMonwarhtt mprrsentaave. - IfdUerent from peN mere Petitioner Mitdtael Meyer,Trustee Property Dwnw Setae as petitioner Address:_11 Bay Street,Beverly,MA 019; Address: Telephone: Telephone: Email:tame ordeveb merrtcom Email: Ir- StBnatute: . Signature: . Data: mbar 27,2016 Date- . (AffadWdcwuW1mwis arm acegoaW`) ifAfferad fru'"pe6aiwrrer Representative:Soba M.Grover,Esq. A TRUE Address:2TCon9lress St #414,Salem.MA 0197( ATTEST Telephone 97& 8065 Signaaae Dace:Se r ,2016 CITY CLERK DATE DPCD DATE This original application must befiled with the City Clerk: STATEMENT OF GROUNDS The petitioner is the current owner of the property at 1-3 Fast Collins Street(the"Property") which is the site of the now closed Ward 2 Social Club. The land area consists of 41,834 s.£and ispresently occupied by a one story concrete block structure. The property is located in the Residential One(R-1)zoning district. It is the petitioner's intention to demolish the existing structure and to construct eight residential dwelling units in single and two family dwellings. The proposed redevelopment of the property will provide parldng which confomms with the requirements of the Zoning Ordinance. To construct multiple sMwftmres on a single property is not allowed in the R-1 district,however, the current use as a social club is legally non-conforming. Therefore,the change to the less detrimental non-conforming multiple dwelling residential use is allowed by Special Permits under Section 3.3.2 of the Ordinance. The project also requires variances from certain dimensional requirements of the Ordinance. Most notably,the lot area per dwelling unit required is 15,000 s.£per unit and the proposed development provides 5,300 s.£ on, existing lot,which - --- - - —_ - per trait. In addition,the exr predates the Zoning Ordinance,has 94.5 feet of footage along East Collins Street where 100 feet is required. The proposal also requires a variance from the requirement that buildings on-a lot bei minimum of_ 40 feet apart, In this instance the minimum distance proposed is 25 feet. Finally,although the height of the building is less than the allowed 35 feet,each building does exceed the height limitation of two and one half stories,requiring a variance from that provision. There is a little question that the land at 1-3 East Collins Street is affected by special conditions that do not affect other lots in the surrounding neighborhood A significant portion of the Property is salt marsh and coastal dune and the entire site lies with the flood plain. In addition, most of the land is within the jurisdiction of the Commonwealth of Massachusetts under Chapter 91. Further,the site is traversed by an easement for the natural gas line which will be constructed in the near feature.Finally,the land is located in the most restrictive zoning district, but surrounded by districts that are less restrictive.These conditions make the development of the site expensive and challenging. The current use of the building as a social club is no longer viable as evidenced by its recent closure due to declining membership.The existing building cannot be reconstructed for another purpose under current flood plain standards.In order to redevelop the property for a residential use consistent with the surrounding neighborhood,current coastal construction standards and the Other regulatory and environmental constraints set forth above require a certain level of density. Without the required relief to allow that level of density,the petitioner will be unable to convert the Property to any economically productive use,creating a hardship for him. The proposed density of the project is significantly less than the average density of the surrounding neighborhood,so the relief requested could be granted without detriment to the public good and would not depart significantly from the intent of the Ordinance or the district The redevelopment of the Property will have the benefit of eliminating a commercial use in the middle of a residential neighborltood. The project will provide adequate parking for the residents and the traffic impact will not be significant compared to the prior use as a social club. As part of the development,the beach and coastal dune will be cleaned up. The majority of the lot that is currently paved will be converted to open green space,thereby itnprovirtg the natural Environment and drainage. Finally,the project will provide much needed housing in the City and will add significant tax revenue. For the foregoing reasons,it is appropriate and desirable for the Board to grant the relief requested EXHIBIT _. C CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL 120 WAST NGTON STREET♦ ` SA Mo3A� U P 2 i 3KhffiELEDisCoit7xiE:978-745-9595*FAx; A TRUE COPY TTEST !` � r f^^ CITY.GLE1@}t:5A LEM.MASS: IT January 4, 2017 W c RK Decision 'SAUM MASS. City of Salem Board of Appeals A petition of MICHAEL MEYER, TRUSTEE, requesting a Special Permit per Sec. 3.3.2 Nonconforming Uses and Variances per Sec. ALI Dimensional Requirements for the following minimum lot area per dwelling unit, minimum lot frontage, minimum distance between buildings, and maximum number of stories to construct eight (8) residential units at 1-3 EAST COLLINS STREET(Map 36 Lot 277) (R-1 Zoning District) At the October 19,2016 meeting,a public hearing was open pursuant to M.G.L Ch.40A, § 11. Testimony was heard on that date and the public hearing was continued on October 19,2016,November 16,2016 and December 21,2016.The hearing was closed on December 21,2016 with the following Salem Board of Appeals members present: Rebecca Curran (Chair),Peter A. Copelas,Mike Duffy,Tom Watkins,and Jimmy Tsitsinos. The Petitioner is requesting a Special Permit per Sec 3.3.2 Nonconforming Uses and Variances per Sec. 4.1.1 Dimensional Regmimments for the following minimum lot area per dwelling unit, minimum lot frontage, minimum distance between buildings,and maximum number of stories to construct eight (8)residential units. Statements of fact: 1. Attorney Grover presented the petition on behalf of the petitioner. Dan Ricciarelli of Seger Architects, of Salem, MA and Scott Cameron, CE of Morin-Cameron Group, of Danvers, MA also presented testimony. 2. In March of 2015,the petitioner withdrew an application without prejudice for a development at this location for a residential use and submitted a significantly different application on September 27,2016 for review. 3. In the petition date-stamped September 27, 2016, the Petitioner requested a Special Permit per Seri per Sec. 3.3.2 Nonconforming Ures of the Salem Zoning Ordinance to change and existing nonconforming use of a social club to another nonconforming use of multi-family residential units. The petitioner is also requesting Variances for relief from See. 4.1.1 Tabk of Dimensional Regminmexts for minimum lot area per dwelling unit,minimum lot frontage,minimum distance between buildings, and number of stories. 4. The property is located at the Planters Street and East Collins Street in an R-1 Zoning District The previous use of the property was the Ward 2 Social Club. A TRUE COPY ATTESJ 5. At the October 19, 2016 public hearing testimony was heard and therggednfaBo�rt&;6 R the property had lost its grandfathered non-confomring status. The Opinion from the City Solicitor to clarify whether property had lost its n s The non- conforming status of the property determines whether the Board has e a the property use from one non-conforming use to another non-conforming use by special permtim 6. On November 16, 2016, the petitioner requested a continuation of the public hearing to the neat regularly scheduled meeting on December 21,2016. No testimony was heard at this meeting. 7. At the December 21,2016 meeting,the Board reviewed and discussed the legal opinion from the City Solicitor dated December 4,2016. 8. The following are conclusions from the legal opinion relevant to the issues discussed at the October 19,2016 public hearing: • The use of the property is entitled to protected status as a legally non-conforming use under M.G.L. Ch.40A Section 6. • The club did not abandon its use of the property in January 2014, when it closed the building to the public. • The sale of the property to the petitioner does not constitute a termination of the use of the Property • It is within the authority of the City of Salem Board of Appeals to issue a special permit to allow a non-conforming use of the Property to continue, provided that the Board issues a finding that the proposed new use of the Property, is less detrimental than the existing - nonconforming use. - 9. Delinquent property taxes were paid by the petitioner before the December 21,2016 public hearing. 10. On November 30, 1948, various residents of the City of Salem formed the Club as a Massachusetts not-for-profit corporation organized under M.G.L. Ch. 180 for _the._purpose of promoting brotherhood and charity in the Ward Ir District of Salem. 11. On November 1, 1956, the Club acquired title to the Property for the purpose of constructing a building to serve as the location for the charitable activities of its membership including a place to hold meetings and place where the public would be able to hold events.At this time;the property was - located in a Single Residence District- B and the 1955 Ordinance was in effect Pursuant to Sec.4.B.5 the Use of the Property was a permitted use in the Single Residence District, but is no longer a permitted use by right in the Rl Zoning District The Social Club is an existing non-conforming use. (See Opinion 1-3 E. Collins St Dated Dec. 4,2016 for further discussion). 12. On May 21, 2015, the Club sold the property to the petitioner.The land area of the property consists of 41,834 square feet and has a one-story concrete block structure.The existing structure does not meet the current floodplain construction standards. 13. The petitioner is proposing to change the use of the property from the non-conforming use of a social club to multi-family residential dwelling units. 14. The petitioner testifies that the proposed residential use of the property is more consistent with the surrounding neighborhood use than the existing social club and bar room 15. The existing building cannot be reconstructed for another purpose under the Chapter 91 requirements due to current flood plain construction standards.As such,the petitioner is proposing to demolish the A TRUE C0K rOT Ward 2 Social Club structure to construct eight(8)residential dwelling um in 6 �1 dwelling arrangements. C1 Y C r. IW�J 16. The proposed eight(8)units will be divided into three (3) duplexes and two `1a"'�nomtes. The petitioner testifies that the proposed residential use is consistent with the use of the suaounding neighborhood and the dwelling unit arrangement of single and two- family units is consistent with the arrangement of dwelling units within the surrounding neighborhood 17. The petitioner is requesting a special permit per Sec. 3.3.2 Nonconforming Uses to change the existing non-conforming use of the property from the existing Ward 2 Social Club to muld-family residential dwelling units m single and two (2) family arrangements. 18. The petitioner expects to provide future public access to the waterfront through the property,in a location determined by the Planning Board and Massachusetts Department of Environmental Protection (DEP) through the Chapter 91 permitting process. 19. The proposed plan is providing fourteen (14)parking spaces where the requirement is twelve (12) parking spaces. The Salem Zoning Ordinance requires one and a half(1.5)parking spaces per dwelling unit 20. Currently, there is one long curbcut with approximately thirty (30)parking spaces on the property. The petitioner is proposing to reduce the number of parking spaces and formalize a curbcut that meets the dimensional requirement of a maximum of 20' feet for a residential use. 21. Mr. Cameron, CE of Morin-Cameron Group,of Danvers,MA testified that the existing public utilities and other public services are adequate to support the proposed eight(8) residential units. 22. Mr.Cameron,CE of Morin-Cameron Group,of Danvers,MA testified that the impacts on the natural environment,including drainage would be positive.The petitioner is proposing to reduce the existing impervious surface from 30% to 15%.The property will comply with all stormwater- -- management requirements. 23. The existing Ward 2 Social Club structure is 5,200 square feet at 12.5%lot coverage.In comparison, the five (5)proposed residential structures are a total of 6,400 square feet at 13.3%lot coverage.Mr. Cameron testifies that the proposed structures will have similar lot coverage and footprint areas as the existing structure. 24. Mr. Cameron testifies that existing average lot area per dwelling unit in the neighborhood one(1) dwelling unit per 2,600 square feet. The petitioner is proposing a lot area per dwelling unit of 5,229 square feet,making the proposed development approximately 30%less dense than neighboring dwelling units. 25. Mr. Cameron testifies that the spacing between buildings in the existing neighborhood is approximately ten (10) to twenty (20) feet.The proposed distance between the buildings at 1-3 East Collins Street is twenty-five (25� feet at the narrowest point. 26. The footprints of the proposed buildings are comparable to the existing footprints of the buildings in the surrounding neighborhood. 27. Mr. RicciareK of Seger Architects testified that the proposed building footprints, massing and architectural design are consistent with the architectural details, massing, and form of the surrounding neighborhood. For example, the proposed buildings incorporate simplejba��'� "A"shaped roollines.The building facades are slender with the remaining rit rear.All of these details fit with the existing character of the dwelling unitstiat ,nand 28. The arrangement of the buildings is in response to the public request tSl.ly II ll L£L of the ft waterfront jrl lYl 29. The potential fiscal impact,including impact on the City tax base is positive. 30. The petitioner is also requesting four (4) variances including minimum lot area per dwelling unit, minimum lot frontage,minimum distance between buildings, and maximum number of stories. 31. The petitioner,proposed the following deviations from the dimensional requirements of the Zoning Ordinance: a) a lot area per dwelling unit of 5,300 square feet where the requirement per the Zoning Ordinance is 15,000 square feet; b) 94.5 feet of frontage where the requirement per the Zoning Ordinance is 100 square feet of linear frontage;c) a minimum of 25 feet of distance between buildings where the minimum required distance is 40 feet d)Three (3) stories where the maximum requirement is 2.5 stories. 32. The petitioner testifies that the special conditions and circumstances that especially affect the land, building or structure involved,generally not affecting other lands,buildings and structures in the same district is that a significant portion of the property is salt march and coastal dune and the entire site lies within the floodplain. Further,the site is traversed by an easement for the natural gas line which___ will be constructed in the near future.In addition,most of the land is within the jurisdiction of the Commonwealth of Massachusetts under Chapter 91. The land is also located in the most restrict zoning district,but surrounding by districts that are less restrictive.These unique conditions of this property make the development of the site expensive and challenging. 33. The petitioner testifies that the social club is no longer viable as evidenced by its recent closure due to declining membership.Further the existing building cannot be reconstructed for another purpose under the Chapter 91 requirements due to current flood plain standards. The literal enforcement of the zoning ordinance would allow the property owner to construct a single-family home. Due to _ unique conditions of the land, the cost of the required specialized construction would exceed the market value of the home for the area. 34. The petitioner proposes a density of 5,300 square feet where the requitement is 15,000 square feet per dwelling unit and testifies that the proposed density of eight(8) residential dwelling units is needed.A single-family use,which is an allowable use by right on this property,is not an economically feasible use and creates an economic hardship for the petitioner due to the cost of construction needed for this property. 35. The petitioner is proposing 94.5 feet of frontage where the requirement per the Zoning Ordinance is 100 square feet of linear frontage.The frontage is a pre-existing non-conforming dimension with no alternative to provide additional linear frontage. 36. The petitioner is proposing 25'-30' feet of distance between buildings where the minimum required distance is 40 feet. 37. The petitioner is proposing to construct dwelling units that are three (3) stories rather than the maximum requirement of 2.5 stories.The proposed living areas are raised with parking proposed underneath the building by necessity because the entire property is located within the flood zone. Coastal construction requires that the first floor be elevated above the ten (10) foot flood elevation. A TRUE COPY ATTEST Ct. d)t�� 38. The dwelling unit mean rafter height does not exceed the 35'foot maximum QW*d.E' R{ 39. At the public hearings, ten (10) residents spoke in opposition to the ptop8AJ&A&aA0AuCj&er spoke in support of the petition. The Salem Board of Appeals, after careful consideration of the evidence presented at the public hearing, and after thorough review of the petition, including the application narrative and plans, and the Petitioner's presentation and public testimony, makes the following findings that the proposed project meets the provisions of the City of Salem Zoning Ordinance: Findings for Variance: 1. The special conditions and circumstances that especially affecting land,building or structure involved generally not affecting other lands,buildings, and structures in the same district is that a significant portion of the property is salt march and coastal dune and the entire site lies within the flood plain. Further,the site is traversed by an easement for the natural gas line,which will be constructed in the near future.In addition,most of the land is within the jurisdiction of the Commonwealth of Massachusetts under Chapter.91.The land is also located in the most restrict zoning district,but surrounding by districts that are less restrictive. These unique conditions of this property make the development of the site expensive and challenging. 2. The literal enforcement of the provisions of the Ordinance would involve,substantial hardship as.the -_ cost of building a single-family home on the property would far exceed the market value of the area. 3. 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. Findings for Special Permit 1. The proposed change use of a non-conforming social club to-another non-conforming use of multi- . family residential uses in a single and two (2) family arrangement is not substantially more detrimental than the existing non-confonning use to the impact on the social, economic or community needs served by the proposal 2. There are no impacts on traffic flow and safety, including parking and loading as there are fourteen (14) on-site parking spaces that exceed the minimum parking requirements of the Salem Zoning Ordinance. 3. The capacity of the utilities and public services are not significantly affected by the project. 4. There are net positive impacts on the natural environment, including drainage as the existing property has approximately 12,000 square feet of existing pavement surface. The petitioner is proposing to reduce the impervious surface on the property to approximately 5,500 square feet 5. The proposal improves neighborhood character as it improves the property and the residential use is consistent with the use of the surrounding neighborhood. The dwelling unit arrangement of single and two- family units is consistent with the arrangement of dwelling units within the surrounding neighborhood. Further, proposed building footprints, massing, density and architectural design are consistent with the architectural details,massing,density and form of the surrounding neighborhood. 6. The potential fiscal impact,including impact on the City tax base is positive. On the basis of the above statements of facts and findings, the Salem Board of Appeals Curran (Chair), Peter A. Copelas,Jimmy Tsitsinos,Mike Duffy, voted five (Rebecca and Tom Watkins)in favor and none Opposed, to grant a Special Permit per See 3.3.2 Noncnnfmmtng Urex and Variances per Sec.4.1.1 Dimendona! Requirements of the Salem Zoning Ordinance,for minimum lot area per dwelling unit,minimum lot frontage, minimum distance between buildings,and maximum number of stories,to construct eight(8)residential units subject to the following terms, conditions and safeguards: I. The Petitioner shall comply with all city and state statutes, ordinances,codes and rons. egulati 2. All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner 3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 4. Petitioner shall obtain a building permit prior to beginning any construction. 5. Exterior finishes of new construction shall be in harmony with the existing structure. 6. A Certificate of Inspection shall be obtained. 7. A Certificate of occupancy shall be obtained. 8. Petitioner shall obtain street numbering from the City of Salem Assessor's Office and shall display said number so as to be visible from the street 9. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to,the Planning Board. Special Condition: 1. The applicant shall provide public access to the waterfront per DEP Chapter 91 license requirements. Rebecca Curran, Chair Board of Appeals A COPY OF THIS DECISION HAS BEEN FRED WITH THE PLANNING BOARD AND THE CTI YCLERit flppeal form tbie dearion,if a3;rball be made prnraant to Seetron 17 9f the Mauacbruetu General Lars Chapter 4o,4,and ih be fikd azilnir?0 days of fihng of tbu deanos to the�of the Cie*Ckrk. Pwwant to the MauaehAw,&Genera!Iavr Cbapkr 4oA,Section 11, the Vmram or Speaal Peamtgtanted herein rball not take�et until a top*of the deacon beating the eettificak of the Cary Cktk has been filed nth the Euex Soatb Regirtry ofDaed✓. A TRUE COPY ATTEST '� � p CI Y CLER'�K SALEM MASS. CITY OF SALEM, MASSACHUSETTS o' BOARD OF APPEAL 120 WASHINGTON STREET♦ SALEM,MASSACHUSETTS 01970 KIMBERLEY DRISCOLL TELE:978-745-9595♦ FAX:978-740-9846 ZOIb MAR 30 P 12: 41 MAYOR CITY ;: ,iL March 30, 2016 Decision City of Salem Board of Appeals A petition of MICHAEL MEYER requesting a Special Permit per Sec. 3.3.2Nonconfomvng Uses of the Salem Zoning Ordinance to change and existing nonconforming use of a social club to another nonconforming use of eighteen (18) residential units. The petitioner is also requesting Variances for relief from Sec. 4.1.1 Table of Dimensional Requirements for minimum lot area per dwelling unit, minimum lot frontage, minimum lot coverage, front and side yard setbacks, minimum distance between buildings, and number of stories at the property located at 1-3 EAST COLLINS STREET (Map 36 Lot 277)(R1 Zoning District). At the October 21, 2015 meeting the Board granted the petitioner's request to continue to the next regularly scheduled meeting on November 18,2015. The project was not presented and the public comment period was not opened until November 18,2015 pursuant to M.G.L Ch. 40A, § 11. The public hearing was continued on November 18,2015,December 16,2015,January 20, 2016, February 17,2016 and March 16, 2016. The hearing was closed on March 16,2016 with the following Salem Board of Appeals members present: Rebecca Curran (Chair), Peter A. Copelas,Mike Duffy,Tom Watkins, and Paul Viccica (alternate). The Petitioner is requesting a Special Permit per Sec. 3.3.2 Nonconforming Uses of the Salem Zoning Ordinance to change and existing nonconforming use of a social club to another nonconforming use of eighteen (18) residential units. The petitioner is also requesting Variances for relief from Sec. 4.1.1 Table of Dimensional Requirements for minimum lot area per dwelling unit, minimum lot frontage, minimum lot coverage, front and side yard setbacks,minimum distance between buildings, and number of stories. Statements of fact: 1. Attorney Grover presented the petition on behalf of the petitioner. 2. In the petition date-stamped September 25, 2015, the Petitioner requested a Special Permit per Sec. per Sec. 3.3.2 Nonconforming Uses of the Salem Zoning Ordinance to change and existing nonconforming use of a social dub to another nonconforming use of multi-family residential units. The petitioner is also requesting Variances for relief from Sec. 4.1.1 Table of Dimensional Requirements for minimum lot area per dwelling unit,minimum lot frontage,minimum lot coverage, front and side yard setbacks, minimum distance between buildings, and number of stories located at 1-3 EAST COLLINS STREET (Map 36 Lot 277)(Rl Zoning District). 3. The original petition, dated September 25, 2015, proposed two (2) three (3) story buildings with eighteen (18)residential units in an R-1 Zoning District. City of Salem Board of Appeals 3/30/2016 Project:3-1 East Collins Street Page 2 of 5 4. The proposed living areas are raised with parking proposed underneath the building by necessity because the entire property is located within the flood zone. 5. The original petition, proposed the following deviations from the dimensional requirements of the Zoning Ordinance: 1) a lot area per dwelling unit of 2.324 square feet where the requirement per the Zoning Ordinance is 15,000 square feet; 2) 94.5 feet of frontage where the requirement per the Zoning Ordinance is 100 square feet of linear frontage; 3) exceeding the maximum lot coverage with 31.8%lot coverage where the requirement is 30%lot coverage;4) 1.8 feet from the front yard setback where 15 feet is required; 5) 0.25 feet from the side setback where 10 feet is required; 6) Three (3) stories where the maximum requirement is 2.5 stories. 6. The petitioner proposed to provide twenty-seven (27) parking spaces to comply with the required number of parking spaces as per the Zoning Ordinance and provide close to two (2) parking spaces per dwelling unit in response to neighborhood concerns regarding parking. 7. The petitioner also requested a special permit from one nonconforming use of a social club to another nonconforming use of multi-family residential dwelling units. 8. At a public hearing for the petition was opened on October 21, 2015 and continued to the next regularly scheduled meeting on November 18,2015 at the request of the applicant to revise the original plans to respond to neighborhood concern about density,parking,view corridors to the water among other concerns. 9. Between the time that the petitioner submitted the proposal to the Board and the October 21,2015 meeting, the petitioner met with the neighborhood to listen to concerns about the proposal and revised plans that were submitted thereafter to the Board and reviewed at a public meeting on November 18,2015. 10. At the public meeting on November 18, 2015,the petitioner presented revised plans and proposed fourteen (14) residential units rather than the eighteen (18) proposed in the original petition in , response to continued concerns from the neighborhood.There were eight (8) units proposed for the linear building that runs along Planters Street, Building"A" and six (6) residential units along East Collins Street,Building"B". 11. The petitioner proposed to construct the project in two (2) phases with the building along Planters Street to be constructed first because this portion of the property is outside of the jurisdiction of state Chapter 91 licensing. The second`Building B"would be built after the Chapter 91 process. 12. Attorney Grover stated that before the petitioner can apply to the state for a Chapter 91 license all local approvals have to be received first.The project also would have to go through the Massachusetts Environmental Policy Act review before Chapter 91. Both MEPA and Chapter 91 can be a very long process. 13. The project was designed to have the opportunity to develop eight (8) units with local approvals that are required by the Zoning Board of Appeals,Planning Board, and Conservation Commission. Phase II to construct building"B"requires MEPA and Chapter 91 review and would take approximately a year and a half for state approvals. City of Salem Board of Appeals 3/30/2016 Project: 3-1 East Collins Street Page 3 of 5 14. Attorney Grover presented the following grounds for the Special Permit request: • Social, community, or economic needs served by the proposal are that the petitioner is proposing to change the use from a commercial use to residential, which is closer to the underlying allowable use of the neighborhood. This property is also a nuisance to the neighborhood as there are illicit activities that occur frequently on the property and the redevelopment of the site is required to formalize meaningful access through a Chapter 91 requirement to provide public access and use of the waterfront which is a positive public benefit. • Traffic flow and safety, including parking and loading are adequate as the petitioner is providing more than the required number of parking spaces. • Utilities and public services are adequate. • Impacts on the natural environment including drainage will be greatly improved as the impervious parking lot will be significantly reduced and new landscaping materials and plantings will cover a significant portion of the site using low impact development design. In addition, the petitioner proposes to improve an existing drain that was installed incorrectly in the parking lot area. • The design and proposed use fit better with the character of the neighborhood than the existing use and structure. The proposed density of fourteen (14) units is not as a lot given the overall density in the area. • The potential fiscal impact, including impact on City tax base and employment will be positive. 15. The petitioner presented a density study of the acre surrounding the subject property to demonstrate that the average density in the neighborhood was 22.1 units per acre with an average lot area of 2.613 square feet (0.06 acres). 16. At the November 11, 2015 meeting the Board requested that the building be redesigned to better fit the existing architecture of the neighborhood. The Board suggested considering a design that was more akin to townhouses with stairways leading to each unit to break up the massing of the building along Planters Street. Revisions requested included breaking up building"A"along Planters Street to include three (3)individual buildings each with separate entrances to better match the existing architectural character of the neighborhood. 17. At the November 11, 2015 the Board stated concerns about the request for Variances and design choices to allow the petitioner to accept a design to fit with the regulatory and time constraints of the Chapter 91 process. 18. The petitioner requested a continuation at the December 16,2015 meeting to the next regularly scheduled meeting on January 20, 2016 to allow more time for plan revisions. 19. At the January 20, 2016 meeting, the petitioner presented revised architectural plans. Changes included the division of Building"A"along Planter Street into three (3) distinct multi-family structures including a three (3) unit building, a two (2) unit building and another three (3) unit building and the Board requested that building"B" also be reduced to a two (2) family dwelling unit to better City of Salem Board of Appeals 3/30/2016 Project: 3-1 East Collins Street Page 4 of 5 fit with the character of the neighborhood. The petitioner reduced the number of proposed units from eighteen (18) to fourteen (14). 20. The petitioner proposed to have a public access way to the water along the southern lot line of the property. 21. It was suggested by the Board that the petitioner consider an alternative location of the public access way either through the center of the site or eliminate the public pathway until further review was done through Chapter 91 licensing. 22. The Board also stated that the proposal for Building B,was not an appropriate density and is out of character for the neighborhood. 23. The Board requested that the petitioner consider looking at the possibility of constructing single family homes along the existing frontage. 24. Attorney Grover testified that the existing frontage is 95 feet along East Collins Street,which does not allow for even a single conforming lot. Further to create individual lots from this parcel would be a subdivision and the lots could not comply with the zoning requirements because there is no sufficient frontage for one (1) or mote lots. 25. The Board suggested that the petitioner consider duplexes hugging the property boundaries as there are unique limitations to the site including the location of the flood zone, an existing gas easement, wetlands and other unique features of the property. 26. At the January 20,2016 meeting Attomey Grover presented the follow statement of hardship for the request for Variances: • Special conditions and circumstances that especially affect the land, building,or structure generally not affecting other lands, buildings, and structures in the same district are that the land is subject to Chapter 91 jurisdiction, there is a coastal dune and wetlands on the property, there is also a gas line easement running through the property. These special conditions limit part of the site available for development. The petitioner needs variances from the zoning ordinance to exceed the height and setback requirements because there is such a narrow building envelope. • The special and unique site conditions also make it a very expensive site to develop,requiring a certain level of density to make development economically feasible. • Desirable relief can be granted without detriment to the public good as the current site is in poor condition. 27. At the February 17,2016 meeting the petitioner requested a continuation to the next regularly scheduled meeting on March 16, 2016. No testimony was heard at the February 17,2016 meeting. 28. The requested relief,if granted,would allow the Petitioner to change and existing nonconforming use of a social club to another nonconforming use multi-family residential units and relief from Sec. 4.1.1 Table of Dimensional Requirements for minimum lot area per dwelling unit,minimum lot frontage, City of Salem Board of Appeals 3/30/2016 Project:3-1 East Collins Street Page 5 of 5 minimum lot coverage, front and side yard setbacks, minimum distance between buildings, and number of stories. 29. At the public hearings, twenty (20) residents submitted letters and spoke in opposition to the proposal. No members of the public spoke in support of the petition. 30. At the March 17,2016 meeting the petitioner requested to withdraw the petition without prejudice. On the basis of the above statements of facts and findings, the Salem Board of Appeals voted five(5 in favor (Rebecca Curran (Chair),Peter A. Copelas, Mike Duffy,Tom Watkins, and Paul Viccica (alternate). and none (o) opposed, to allow the petitioner to withdraw without prejudice. WITHDRAWN WITHOUT PREJUDICE Z4- C-kW2'� Rebecca Curran, Chair II 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 40,4,and.shall be fikd within 20 days offikng of this decision in the office of the City Clerk. Pursuant to the Massachusetts General La s Chapter 40A, Section 11, the Vxiance of Special Pennit granted herein shall not take effect until a copy of the decision bearing the certificate of the City Ckrk has been filed with the Essex South Registry of Deeds. CTfY OF SALEM, MASSACHUSETTS BOARD OF APPEALS �'rONDITf4 PETITION FORM eve' CITY 01� SAI..Ii;M,MASSACHUSET`FS n BOARD OF APPFALS 1015 SEP 25 A {I: 01 C 2 M a �0 120 WASHIN GTON S LRt t I 31ro FLOOR 7� � Y SALL M MASSACttUSLf LS 01970 CITY C__ ;, ,.,L 'ii, hl.'ita: MINI: Thomas tit.Pierce,Director of Inspectional Services Phone:978-619-5641 / Fax:978-740-9846 REC E I Td E KIMBERLEY DRISCOLL Ir.rin tichae EFee,tinrff l tanner 6Mw MAYOR Phone:978-619-5685 / Fax:978-740-0404 TO THE BOARD OF APPEALS: SEP 2 5 2015 The Undersigned represent that he/she is/are the owners of a certain parcel of land located at: DEPT OF PLANNING A COMMUNITY DEVELOPMPNT Address: 1-3 East Collins Street "Zoning District: R-1 An application is being submitted to the Board of Appeal for the following reason(s): This statement must describe what you propose to build,the dimensions,the zone property is in,and the zoning requirements,(f.'xamp/e: I am proposing to consu act a 10'x l0'one story od(filion to nnhome located ai 3 Scrlenr /.acre, in the R-2 'Zoning District. The Zoning Ordinance requires the minimum depth oithe rear yard to be 30 feet The current depth of my rear yard is 32 feet: the proposed addition would reduce the depth of the rear yard to 22 feel.) See Statement of Grounds attached and plans submitted herewith For this reason 1 am requesting: I.)Variance(s)from provisions of Section of the Zoning Ordinance,specifically from See Plans submitted herewith (i.e. minimum depth of rear yard). What is allowed is See Plans submitted herewith (jt?sq ft?stories? %?), and what I am proposing is See Plan submitted herewith (/t?sgft?stories? %?). ( ,)A Special Permit under Section of the Zoning Ordinance in order to Change from one nonconforming use to another less detrimental nonconforming use ( )Appeal of the Decision of the Building Inspector(described below): ( )Comprehensive Permit for construction of low or moderate income housing(describe below): Current Property Use: Social Club Are Lot Dimensions Included?()Yes O No Why? (Example:Two Family Home) The Undersigned hereby petitions the Board of Appeals to vary the terms of the Salem Zoning Ordinance and allow the project to be constructed as per the plans submitted,as the enforcement of said Zoning By-Laws would involve practical difficulty or unnecessary hardship to the Undersigned and relief may be granted without substantially derogating from the intent and purpose of the Zoning Ordinance. CITY OF SALEM,MASSACHUSETTS BOARD OF APPEALS PETITION FORM The following written statement has been submitted with this application: (>) For all Variance requests a written Statement of Hardship demonstrating the following must be attached: a) Special conditions and circumstances that especially affect the land,building,or structure involved, generally not affecting other lands,buildings,and structures in the same district; b) Literal enforcement of the provisions of the Ordinance would involved substantial hardship to the applicant;and 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. (.) For all Special Permit requests a Statement of Grounds must be attached. An application for a special permit for a nonconforming use or structure shall include a statement demonstrating how the proposed change shall not be substantially more detrimental than the existing nonconforming use to the neighborhood in accordance with Section 9.4 Special Permits.Such a statement should include reference to the following criteria: a) Social,economic,or community needs served by the proposal; b) Traffic flow and safety,including parking and loading; c) Adequacy of utilities and other public services; d) Impacts on the natural environment, including drainage; e) Neighborhood character;and f) Potential fiscal impact,including impact on City tax base and employment. O For all Comprehensive Permits for construction of low or moderate income applicants should refer to M.C.L. Ch.40B § 20-23. Previous applications to the Board of Appeals involving this property have been submitted with this petition form. The Building Commissioner can provide documentation of previous applications to the petitioner or his representative, ff different from petitioner. Petitioner: Michael Meyer Property Owner: Same as petitioner Address: Trustee of 1-3 East Collins Realty Address: Telephone: 11 Bay St., Beverly MA Trust Telephone: Email: come er@nedev I.com Email: Signature: Signature: (Attached consent letter is also acceptable) Date: tember 25, 2015 Date: - Ifdifferent from petitioner. Representative: Scott M. Grover, Esq. A TRUE Address: 27 Congress Street, Salem, MA 01970 ATTEST Telephone: 65 Signature Date: S to er 25, 20 15 CITY CLERK DATE DPCD DATE This original application must be filed with the City Clerk. STATEMENTOF GROUNDS The petitioner recently acquired the property at 1-3 Collins Street (the "Property") which is the site of the now closed Ward 2 Social Club. The land area consists of 41,834 s_f. and is presently occupied by a one story concrete block structure. The property is located in the Residential One (R-1) zoning district. It is the petitioner's intention to demolish the existing structure and to construct eighteen residential dwelling units in two buildings. The proposed redevelopment of the property will provide twenty seven (27) parking spaces beneath rxtfWthe buildings in conformity with the requirements of the Zoning Ordinance. The use of the Property for multifamily residential purposes is not allowed in the A-1 district, however, the current use as a social club is a legal non-conforming conformance. "therefore, the change to the less detrimental nonconforming multifamily residential use is allowed by Special Permits under Section 3.3.2 of the Ordinance. The project also requires a variance from several dimensional requirements of the Ordinance. Most notably, the lot area per dwelling unit required is 15,000 s.f. per unit and the proposed development provides 2,324 s.f. per unit. In addition, the lot has 94.5 feet of footage along fust Collins Street where 100 feet is required and lot coverage is 31.8% which is slightly more then the 30% allowed. The proposal also requires variances from the front and side setback and the distance between buildings requirements as shown on the plan submitted herewith. Finally, although the height of the building is less than the required 35 feet, it does exceed the height limitation of two and one half stories, requiring a variance from that provision. There iaJ little question that the land at 1-3 East Collins Street is affected by special conditions that do not affect other lots in the surrounding neighborhood. A significant portion of the Property is salt marsh and coastal dune. In addition, most of the land is within thejurisdiction of the Commonwealth of Massachusetts under Chapter 91. Further, the site is traversed by an easement for the natural gas line which will be constructed in the near feature. These conditions make the development of the site expensive and challenging. Given the limited portion of the site that is available for construction and the costs associated with the various special conditions, a literal enforcement of the provisions of the Ordinance would create a substantial hardship for the petitioner. The proposed density of the project is consistent with the average density of the surrounding neighborhood, so the relief requested could be granted without detriment to the public good and would not depart significantly from the intent of the Ordinance or the district. The redevelopment of the Property will have the benefit of eliminating a commercial use in the middle of a residential neighborhood. The project will provide adequate parking for the residents and the traffic impact will not be significant compared to the prior use as a bar room. As part of the development, the beach and coastal dune will be cleaned up and a public walkway will be installed to improve access to the waterfront. The majority of the lot that is currently paved will be converted to open green space, thereby improving the natural environment and drainage. Finally, the project will provide much needed moderately priced housing in the City and will add significant tax revenue. For the foregoing reasons, it is appropriate and desirable for the Board to grant the relief requested. f CITY OF SALEM,MASSACHUSETTS BOARD OF APPEALS ro�,Tq PETITION FORM yPvS� �oi�e CITY OF SALEM,MASSACHUSE VI'S BOARD OF APPEALS M 120 WAST-[IN GTON STREET3't" ELO(`l[i LP ,sgrs�Q4` SALEM,MASSACHUSETTS 01970 9��/MINED��P Thomas St. Pierre,Director of Inspectional Services Phone:978-619-5641 /Fax:978-740-9846 KIMBERLEY DRISCOLL Erin Schaeffer,Staff Planner MAYOR Phone:978-619-5685 / Fax:978-740-04011 TO THE BOARD OF APPEALS: The Undersigned represent that he/she is/are the owners of a certain parcel of land located at: Address: 1-3 East Collins Street Zoning District:__ R-1 An application is being submitted to the Board of Appeal for the following reason(s): This statement must describe what you propose to build,the dimensions,the zone property is in,and the zoning requirements.(Example: I am proposing to const;net a 10 x 10'one slow adthhon to my home localed at 3 Salem Lane, in the R-2 Zoning District. The Zoning Ordinance requires the minimum depth of the rear yard to be 31)feet The current depth of my rear yard is 32 feet; the proposed addition would reduce the depth of the rear yard to 22 feel) See Statement of Grounds attached and plans submitted herewith For this reason I am requesting: (,)Variance(s) from provisions of Section of the Zoning Ordinance,specifically from See Plans submitted herewith (i.e. minimum depth of rear yard). What is allowed is See Plans submitted herewith (fi?sq ft?stories? %?), and what 1 am proposing is See Plan submitted herewith (ft?sq ft?stories? ?). ( .)A Special Permit under Section of the Zoning Ordinance in order to Change from one nonconforming use to another less detrimental nonconforming use ( )Appeal of the Decision of the Building Inspector(described below): ( )Comprehensive Permit for construction of low or moderate income housing(describe below): Current Property Use: Social Club Are Lot Dimensions Included?(•)Yes O No Why? (Example:Two Family Home) The Undersigned hereby petitions the Board of Appeals to vary the terms of the Salem Zoning Ordinance and allow the project to be constructed as per the plans submitted,as the enforcement of said Zoning By-Laws would involve practical difficulty or unnecessary hardship to the Undersigned and relief may be granted without substantially derogating from the intent and purpose of the Zoning Ordinance. Crry OF SALEM, MASSACHUSETTS BOARD OF APPEALS PETITION FORM The following written statement has been submitted with this application: () For all Variance requests a written Statement of Hardship demonstrating the following must be attached: a) Special conditions and circumstances that especially affect the land,building,or structure involved, generally not affecting other lands,buildings,and structures in the same district; b) Literal enforcement of the provisions of the Ordinance would involved substantial hardship to the applicant;and 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. (•) For all Special Permit requests a Statement of Grounds must be attached. An application for a special permit for a nonconforming use or structure shall include a statement demonstrating how the proposed change shall not be substantially more detrimental than the existing nonconforming use to the neighborhood in accordance with Section 9.4 Special Permits.Such a statement should include reference to the following criteria: a) Social,economic,or community needs served by the proposal; b) Traffic flow and safety,including parking and loading; e) Adequacy of utilities and other public services; d) Impacts on the natural environment,including drainage; e) Neighborhood character;and f) Potential fiscal impact,including impact on City tax base and employment. O For all Comprehensive Permits for construction of low or moderate income applicants should refer to M.G.L. Ch.40B § 20-23. Previous applications to the Board of Appeals involving this property have been submitted with this petition form. The Building Commissioner can provide documentation of previous applications to the petitioner or his representative. /f different from petitioner: Petitioner: Michael Meyer__ Property Owner: Same as petitioner Address: Trustee of 1-3 East Collins Realty Address: Telephone: 11 Bay St., Beverly MA Trust Telephone: Email: mmeyer@ne I lopmenLcom Email: Signature: Signature: (Attached consent teller is also acceptable) Date: timber 25, 2015 ,/�1/� � Date: y /f different from petitioner: Representative: Scott M. Grover, Esq. A TRUE Address:27 Congress Street, Salem, MA 01970 ATTEST Telephone: 65 Signature J"y''c�` _ Date: S to er 25, 2015 CITY CLERK DATE DPCD DATE This original application must be filed with the City Clerk. ' STATEMENT OF GROUNDS The petitioner recently acquired the property at 1-3 Collins Street (the "Property") which is the site of the now closed Ward 2 Social Club. The land area consists of 41,834 s.f. and is presently occupied by a one story concrete block structure. The property is located in the Residential One (R-1) zoning district. It is the petitioner's intention to demolish the existing structure and to construct eighteen residential dwelling units in two buildings. The proposed redevelopment of the property will provide twenty seven (27) parking spaces beneath each of the buildings in conformity with the requirements of the Zoning Ordinance. The use of the Property for multifamily residential purposes is not allowed in the 13-1 district, however, the current use as a social club is a legal non-conforming conformance. Therefore, the change to the less detrimental nonconforming multifamily residential use is allowed by Special Permits under Section 3.3.2 of the Ordinance. The project also requires a variance Prom several dimensional requirements of the Ordinance. Most notably, the lot area per dwelling unit required is 15,000 s.f. per unit and the proposed development provides 2,324 s.f. per unit. In addition, the lot has 94.5 feet of Footage along fast Collins Street where 100 feet is required and lot coverage is 31.8% which is slightly more then the 30% allowed. The proposal also requires variances from the front and side setback and the distance between buildings requirements as shown on the plan submitted herewith. Finally, although the height of the building is less than the required 35 feet, it does exceed the height limitation of two and one half stories, requiring a variance from that provision. There is a little question that the land at 1-3 East Collins Street is affected by special conditions that do not affect other lots in the surrounding neighborhood. A significant portion of the Property is salt marsh and coastal dune. In addition, most of the land is within thejurisdiction of the Commonwealth of Massachusetts under Chapter 91. Further, the site is traversed by an easement for the natural gas line which will be constructed in the near feature. These conditions make the development of the site expensive and challenging. Given the limited portion of the site that is available for construction and the costs associated with the various special conditions, a literal enforcement of the provisions of the Ordinance would create a substantial hardship for the petitioner. The proposed density of the project is consistent with the average density of the surrounding neighborhood, so the relief requested could be granted without detriment to the public good and would not depart significantly from the intent of the Ordinance or the district. The redevelopment of the Property will have the benefit of eliminating a commercial use in the middle of a residential neighborhood. The project will provide adequate parking for the residents and the traffic impact will not be significant compared to the prior use as a bar room. As part of the development, the beach and coastal dune will be cleaned up and a public walkway will be installed to improve access to the waterfront. The majority of the lot that is currently paved will be converted to open green space, thereby improving the natural environment and drainage. Finally, the project will provide much needed moderately priced housing in the City and will add significant tax revenue. For the foregoing reasons, it is appropriate and desirable for the Board to grant the relief requested. MAP 36 LOT 234 ENGLAND OWER CO' NEW / 5 40'06 23" W / 215.89' /4 / Zy 0.25' PROPOSED LINE OF BLDG. ABOVE o$y° / N 0 N of �QS / 0VO MAP 36 LOT 277 M N O-zo LLJ existing shed M V' M) to be removed r CP ►— / N 46'51'23" E 01,3 v' / 28.02' P / PROPOSED how PARKING F / 41'-6' 10.9' PROPOSEDGARAGE / 12 UNIT BUILDING CONDOMINIUM PROPOSED LINE of BLDG. PROPOSED ABOVE 6 UNIT / b CONDOMINIUM z BUILDING ® x,s ino 9 o e remove > , j1% MAP 36 LOT 278 / o o CHARLES & MARY KNIGHT / o �°Dj 5 EAST COLLINS ST. O V a 7/� 78—10" DWELLING 3.0' existing lbuildirg o be removed a 7.9' v , 11 9 + 4 rI N 0.25' qi 22'—B' 94.50' Z-1.8, 5.0 N 46'51'23" E EAST COLLINS STREET ZONING DISTRICT - Rt REQUIRED EXISTING PROPOSED REo 41,834 ± 41,834 ± ZONING BOARD OF APPEALS PLAN 00 2,324 ± 1-3 EAST COLLINS STREET 94.50' 94.50' SALEM 21.6' 1.8' o2� 9v PROPERTY OF E 10 3.0' 0.25' sGAILL \) 1-3 EAST COLLINS STREET SMITH REAR 30 180'± 36'± q NO.35043 N REALTY TRUST LOT COVERAGE Sox ,2.596 31.8R01�Ss0So- , MIN. DISTANCE MICHAEL MEYER TRUSTEE BETWEEN BLDGS. 40 -- 10'± y1'AILANO PARKING 27 36 27• /�J , SCALE 1" = 20' SEPTEMBER 24, 2015 SNORTH SHORE SURVEY CORPORATION BLDG.G. HEIGHT 35 35' OR LESS 35' OR LESS 14 BROWN STREET — SALEM, MA 'PARKING SPACES ARE PROVIDED WITHIN THE BUILDINGS. 978-744-4800 #2933 list- 9" IMF 71- �jj At low IT ICA' La 35' TO MEAN RAFTER H FC \ j' li dill ;I � it iI O Z Z zlIi ii iiiil C/1 H H H C/] H H H C) / H t3j H � clH Z 8, 6 9 6' I 91 6" H j!IIIIII ijllll Ij . U1 0 O N r u H � Ili I hill II u it p IijI ,jII� j il;jlll I�I I p I � t1j 111, VIII jllll � YL��� j I ill ! d l;I �I l I� lill l l 8 6 9 6 I 9 6 2 East Collins Street Condominium SEGER ARCHITECTS, INC. April 17,2015 10 DERBY SQUARE,SALEM,MA a1:978-744-0208 johnaseger@wgcn¢hi¢ .com 9'-6° 9'-6" W H N bd H r d 2 East Collins Street Condominium SEGER ARCHITECTS,INC. April 17,2015 10 DERBY SQUARE,SALETM,AIA wh 978-7"-0208 iohmse @cgcmmhiu mwm CITY OF SALE M, MASSACHUSETTS BUILDING DEPARTMENT j 98 WASHINGTON STREET,2ND FLOOR TEL: 978-745-9595 KIM 3ERLEY DRISCOLL FAX: 978-740-9846 MAYOR THOMAS ST.PIERRE DIRECTOR OF PUBLIC PROPERTIES/BUILDING CONEMISSIONER June 14, 2019 Via email to bfierro(alynchfierro com Benjamin Fierro III, Esq. Lynch & Fierro LLP 6 Beacon Street, Suite 425 Boston, MA 02108 RE: 1-3 East Collins Street Dear Attorney Fierro: I am writing in response to your request of April 26, 2019 seeking a written determination that the proposed use of 1-3 East Collins Street by the New View Addiction Rehabilitation and Education Center, Incas a Department of Public Health licensed treatment facility is a use protected under the Dover Amendment to the Zoning Act(G.L. c. 40A, § 3, ¶2) and Section 6.5 of the City's Zoning Ordinance. As you know, the Dover Amendment allows the use of land or structures for educational purposes by a nonprofit educational corporation in any zoning district, including Salem's R-1 district where 1-3 East Collins Street is located. I have reviewed the binder of information you submitted and examined the current case law with the City Solicitor's office. As the determination you are seeking requires a fact-based inquiry to determine whether the proposed use is sufficiently educational in nature, I have carefully examined the materials you submitted relating to the filings your client has made with the Secretary of State's office, the DPH letter indicating that the proposed facility has met the preliminary suitability requirements for licensure, the description of the proposed educational programming and daily schedules, and the resumes of the principals involved. In reviewing the case law, we have found that addiction treatment centers like that proposed by New View have been provided with Dover Amendment protection despite involving medical treatment. Based upon the materials you have provided the City, and in light of the legal precedent, it is my determination that New View should be afforded the same protection. Please keep in mind, however, that any decision in the pending appeal of McLean Hosp. Corp. v. Town of Lincoln, 26 LCR 540 (2018), a case where the Land Court found that the therapeutic program use proposed by McLean Hospital was not predominately educational and not protected by the Dover Amendment, could alter s k CITY OF SALEM, MASSACHUSETTS r1� BUILDING DEPARTMENT 98 WASHINGTON STREET,2ND FLOOR TEL: 978-745-9595 i KIMBERLEY DRISCOLL FAX: 978-740-9846 MAYOR i THOMAS ST.PIERRE I DIRECTOR OF PUBLIC PROPERTIES/BUILDING COMMISSIONER this determination. The City expressly reserves the right to reconsider this determination should the Supreme Judicial Court decide to limit the scope of Dover Amendment protection such that New View's use would no longer be consider sufficiently educational. While I have determined that, as of now,New View's proposed use qualifies for protection under Dover, please be advised that under Chapter 40A, the City may still regulate and impose reasonable requirements with respect to the height and bulk of the structure as well as parking. Also, given the property's location, any structure will need to comply with all City ordinances and state regulations regarding construction within the flood plain. Should you choose to move forward, we will need to meet to review these issues prior to the issuance of any building permits. Re spe tfully, Thomas St. Pierre cc: Elizabeth Rennard, City Solicitor Victoria Caldwell, Asst. City Solicitor CITY OF SALEM, MASSACHUSETTS $ BUILDING DEPARTMENT ` 120 WASHINGTON STREET,3'D FLOOR TEL. (978) 745-9595 F.�x(978) 740-9846 KIMBERLEY DRISCOLL MAYOR THOML-kS STYIERRE DIRECTOR OF PUBLIC PROPERTY/BUILDING COMMISSIONER March 22, 2018 1-3 East Collins Realty Trust Mike Meyers-Trustee 11 Bay Street Beverly Ma. 01915 Re; code violations -1-3 East Collins Dear Trustee, This Department has been receiving complaints regarding the condition of your property as well as the building being occupied overnight. I have received a Police report in which the responding officer noted a sleeping bag and other accommodations as well as a individual. There is no occupancy permit for the building nor is there running water or permanent electricity. Therefore it is unlawful (per State Building Code 780 CMR section 111) to occupy the building . You are directed to cease occupying the building immediately. Failure to comply will result in daily fines and further enforcement actions . If you feel you are aggrieved by this order, your appeal is to the Board of Buildings, Regulations and Standards in Boston. Thomas St.Pierre ;A4ti Building Commissioner CITY OF SALEM MASSACHUSETTS BUILDING DEPARTMENT cs.A 98 WASHINGTON STREET,2ND FLOOR TEL:978-745-9595 KIMBERLEY DRISCOLL FAQ::978-740 9846 MAYOR THOMAS ST.PIERRE DIRECTOR OF PUBLIC PROPERTIES/BUILDING COMMISSIONER March 5, 2020 Via Email and First-Class Mail Mark Bobrowski, Esq. Blatmon,Bobrowski &Haverty, LLC 9 Damonmill Square, Suite 4A4 Concord,MA 01742 Re: 1-3 East Collins Street/New View Addiction Rehabilitation and Education Center, Inc./Licensed DPH Treatment Facility Dear Attorney Bobrowski, I am writing in response to your request for reasonable accommodation with respect to certain zoning restrictions that could interfere with the residency of disabled persons at the proposed addiction treatment facility. Given the Planning Board's decision not to take further action,and based upon the plans submitted,the City will provide reasonable accommodation in the form of a waiver of the requirements of the Zoning Ordinance for formal Site Plan Review under Section 9.5 and for a Flood Hazard Overlay District Special Permit under Section 8.1. As has been the case with other Dover Amendment-protected uses,these review processes have been undertaken internally by the relevant City departments. Given that the proposed structure,as detailed in the plans submitted with the request for reasonable accommodation,will comply with the 35-foot height limitation, and the existing setbacks will be improved,the City will also provide reasonable accommodation in the form of relief for the side yard setback and the maximum number of stories under the Zoning Ordinance. These accommodations, however,will be subject to the following conditions: o That no work commence on any portion of the project until a Superseding Order of Conditions has been issued by MassDEP and all appeal periods have elapsed; all work to conform with the general and specific conditions contained therein. o That testing be conducted for historic contamination in accordance with the February 5, 2020 letter from MassDEP to New View(copy attached). Page 12 o That revised plans be submitted addressing all unresolved issues listed in the February 14, 2020 Memorandum from the City's Engineering Department to the Project Manager and Property Owner(copy attached)to the City's satisfaction prior to permitting, including • A letter to the City Engineer explaining why the contractor deviated from approved permits and cut and capped the sewer and fire service at the property line without the City's approval rather than at the main as permitted. • Written documentation as to the status of the second sewer service shown on the revised January 22, 2020 plans. • Letters demonstrating adequate capacity and condition for all water and sewer mains with any deficiency corrected by the applicant at its expense to the satisfaction of the City's Engineering Department. • Letter,along with back up data,establishing that the City water mains serving the facility have adequate flow and pressure. • Diagram showing the proposed installation of the water meter showing height from the floor and distance from the wall where the service line enters the building. • Letter, along with back-up data,establishing the sufficiency of the City sewer system to serve the treatment center to accommodate existing and proposed sewer flows. Video inspection shall be accomplished based on PACP standards and a copy of the video and logs must be submitted with the letter. • Submission of a revised sheet C-3 showing mulch sock around the entire perimeter of the limit of the work. • Prior to any earth moving activities,the existing non-functional catch basin shall be pumped, and the existing pipe capped, crushing and backfilling the catch basin. • Site development plans to show 5-foot width for sidewalk in accordance with ADA requirements. o That the requirements imposed by the Salem Board of Health at its September 10,2019 meeting and outlined in the Health Agent's letter to the Planning Board Chair(copy attached)be adhered to, including: • Notification to the Health Agent of the name, address, and telephone number of the project manager who will be on site and responsible for the construction. • If a MA DEP tracking number is issued under the Massachusetts Contingency Plan, no structure shall be constructed until the Licensed Site Professional responsible for the site meets DEP standards for the proposed use. • A copy of the licensed asbestos inspector's report,the 21E report, and the Demolition Notice sent to DEP, Form BWPAO6, to be provided to the Health Agent. • Radon remediation kit to be installed in and operating in any below-grade dwelling unit and testing to be conducted following its installation. • Submission of a plan to the Health Agent for rodent control to maintain the area free of rodents through construction;employment of a licensed pesticide applicator to exterminate the area prior to construction, demolition,and/or blasting; invoice to be provided to Health Agent. • Submission of written plans to the Health Agent for dust control and street sweeping plan during demolition and construction and containment and removal of debris,vegetative F4 rA t s n r Page 13 waste, and unacceptable excavation material generated during demolition and construction. • Salem Fire Department approval of access plan for firefighting. • Noise levels generated by operations, including but not limited to refrigeration and heating, shall not increase the broadband sound level by more than 10 dB(a)above the ambient levels measured at the property line. • Disclosure in writing to the Health Agent as to the origin of any fill material needed for the project. • Disposal of all waste materials resulting from its operation to be performed in an environmentally sound manner. • Drainage system to be reviewed and approved by the Northeast Mosquito Control and Wetlands Management District. • Plans for proposed kitchen for the facility be sent to the Health Agent for approval prior to construction. • Notification to the Health Agent when the project is complete for final inspection and confirmation that the Board of Health's conditions have been met. o That all work meet the requirements of the Building Inspector and conform to the State Building Code and all applicable City ordinances and conform to the plans submitted. All construction shall be carried out pursuant to the following requirements: • City's Noise Control Ordinance(Chapter 22 of the Code of Ordinances)shall be strictly adhered to. • All reasonable action shall be taken to minimize the effects of construction on abutters with advance notice provided to all abutters at least 72 hours prior to the commencement of construction of the project. • No drilling or blasting to occur on Saturdays, Sundays,or legal holidays and shall be limited to Monday through Friday between 8:00 AM and 5:00 PM; any blasting must comply with all state and local regulations. • All construction will occur on site; no construction shall occur or be staged within any portion of the public way. • Any roadways, driveways, sidewalks or landscaping damaging during construction shall be restored to their original condition. • Construction vehicles shall be cleaned prior to leaving the site so that dirt and/or debris are not left on the surrounding roadways. • Any construction vehicles or equipment left overnight must be located entirely on the site and not within the public way. Please let me know if you have any questions. Sincerely, 6-141,,k4 Thomas St. Pierre Enclosures CITY OF SALEM MASSACHUSETTS a�l�0 ;1 BUILDING DEPARTMENT 98 WASHINGTON STREET, 2ND FLOOR TEL: 978-745-9595 KIAMBERLEY DRISCOOL L FAX: 978 740-9846 MAYOR THOMAS ST.PIERRE DIRECTOR OF PUBLIC PROPERTIES/BUILDING COMMISSIONER June 14, 2019 Via email to bfierro(a lvnchfierro.eom Benjamin Fierro III, Esq. Lynch& Fierro LLP 6 Beacon Street, Suite 425 Boston, MA 02108 RE: 1-3 East Collins Street Dear Attorney Fierro: I am writing in response to your request of April 26, 2019 seeking a written determination that the proposed use of 1-3 East Collins Street by the New View Addiction Rehabilitation and Education Center, Inc.as a Department of Public Health licensed treatment facility is a use protected under the Dover Amendment to the Zoning Act (G.L. c. 40A. § 3,c 2) and Section 6.5 of the City's Zoning Ordinance. As you know, the Dover Amendment allows the use of land or structures for educational purposes by a nonprofit educational corporation in any zoning district. including Salem's R-1 district where 1-3 East Collins Street is located. I have reviewed the binder of information you submitted and examined the current case law with the City Solicitor's office. As the determination you are seeking requires a fact-based inquiry to determine whether the proposed use is sufficiently educational in nature, I have carefully examined the materials you submitted relating to the filings your client has made with the Secretary of State's office, the DPH letter indicating that the proposed facility has met the preliminary suitability requirements for licensure, the description of the proposed educational programming and daily schedules, and the resumes of the principals involved. In reviewing the case law, we have found that addiction treatment centers like that proposed by New View have been provided with Dover Amendment protection despite involving medical treatment. Based upon the materials you have provided the City, and in light of the legal precedent, it is my determination that New View should be afforded the same protection. Please keep in mind, however, that any decision in the pending appeal of McLean Hosp. Corp. v. Town of Lincoln, 26 LCR 540 (2018), a case where the Land Court found that the therapeutic program use proposed by McLean Hospital was not predominately educational and not protected by the Dover Amendment, could alter r~ CITY OF SALEM, MASSACHUSETTS raiy BUILDING DEPARTMENT 1/4-1,41,01, 98 WASHINGTON STREET,2ND FLOOR �— TEL: 978-745-9595 FAX: 978-740-9846 KIMBERLEY DRISCOLL MAYOR THOMAS ST.PIERRE DIRECTOR OF PUBLIC PROPERTIES/BUILDING COMMISSIONER this determination. The City expressly reserves the right to reconsider this determination should the Supreme Judicial Court decide to limit the scope of Dover Amendment protection such that New View's use would no longer be consider sufficiently educational. While I have determined that, as of now,New View's proposed use qualifies for protection under Dover, please be advised that under Chapter 40A,the City may still regulate and impose reasonable requirements with respect to the height and bulk of the structure as well as parking. Also,given the property's location,any structure will need to comply with all City ordinances and state regulations regarding construction within the flood plain. Should you choose to move forward, we will need to meet to review these issues prior to the issuance of any building permits. Respe tfully, ti5 ' ,/z„_.,,,,,., / ---ii-i i , Thomas St. Pierre cc: Elizabeth Rennard,City Solicitor Victoria Caldwell,Asst. City Solicitor