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376 ESSEX STREET - BUILDING JACKET rsupocrTab[/// 1 8 j�r�L�Ad. KEEPING YOU ORGANIZED No. 10301 FMWPNWM .�.. #orM=® cETaRQAN®Are�D,000y ------------ Certificate No: 36-08 Building Permit No.: 36-08 Commonwealth of Massachusetts City of Salem Building Electrical Mechanical Permits This is to Certify that the RESIDENCE located at Dwelling Type I 0376 ESSEX STREET in the CITY OF SALEM -- Address Town/CityTown/CityName IS HEREBY GRANTED A PERMANENT CERTIFICATE OF OCCUPANCY 376 ESSEX STREET This permit is granted in conformity with the Statutes and ordinances relating thereto,and expires unless sooner suspended or revoked. Expiration Date Issued On:Thu Dec 3,2009 ...... GeoTMS®2009 Des Lauriers Municipal Solutions,Inc. 0376 ESSEX STREET 36-08 Map:: 255 GISCOMMONWEALTH OF MASSACHUSETTS Block: _ CITY OF SALEM Lot: 0207-202 Category: REP PLACE Perttut# 36 08 BUILDING PERMIT Project# JS-2008-000040 Est.Cost: $60,000.00 Fee Charged: $425.00 Balance Due: $.00 PERMISSION IS HEREBY GRANTED TO: Const. Class: Contractor: License: Expires Use Group: owner Lot Size(sq. ft.): 14400 —I— --.. .----iOwrrE•r: Rr,F>e•7 v... lr,haeiirF ' ..d!F.... Units Gained: Applicant: Robert 3c Michaeline Ouellette Units Lost: IAT. 0376 ESSEX STREET Dig Safe#: ISSUED ON: 11-Jul-2007 AMENDED ON. EXPIRES ON: I I-Nov-2007 TO PERFORM THE FOLLOWING WORK. KITCHEN BATH WATER DAMAGED CEILINGS,EXTERIOR CLAPBOARD REPAIA'I'O REAR SIDE,PAINTING POST THIS CARD SO IT IS VISIBLE FROM TH STREET Electric Gas Plumbing B'ildin Underground: Underground: Underground: Exvtavation: Service: _ Meter: - _ .. /r 01 Fo]kings: Rough: 0� i� t 6 / Rough" f/ Fj /vr Rougl�i ��/ r- ��1�� Fouhdalion: / A r� Final Final: \ Fivatil/\ Rough Fram/e:/�4OK D.P.W. G (U/ / Fireplace/CNdmeyl:U%l1 Fire Health VVV Meter: Insulation: Oil: �}�/I�` {,/,N� Houzeq Smoke: Final:U•` 1'_' _ b'2w {Vater: Alarm: 1 rrrare:rv: Sewer: Sprinklers: THIS PERMIT MAY BE REVOJCED BY THE CITY OF SALEM UPON VI ATI N ITS RULES AND REGULATIONS. Signature: Fee Type: Receipt No: Date Paid: Check No: Amount: BlLll,p{p{Cw„���,� An.�, g % I-Jul-07 3369 3425.00 UpW COn[pletiott of wodt,p"88 cal 745.9595 Exi.385 Geo?-MSO 2007 Des Lauriers Municipal Solutions.Inc. SERAFINI, SERAFINI AND DARLING ATTORNEYS AT LAW _ 63 FEDERAL STREET SALEM, MASSACHUSETTS 01970 JOHN R. SERAFINI. SR. TELEPHONE JOHN R. SERAFINI. JR. 506.744-0212 JOHN E. DARLING 617-361.2743 ELLEN M. WINKLER TELECOPIER JOSEPH C. CORRENTI June 24 , 1997 508-74t-4683 Mr. Leo E. Tremblay Building Commissioner City of Salem One Salem Green Salem, MA 01970 RE: Request for Certificate of Occupancy 376 Essex Street, Salem Dear Mr. Tremblay: This letter is to request the issuance of a Certificate of Occupancy for the property located at 376 Essex Street. As you know, a building permit was issued for work to be done at 376 Essex Street on August 15, 1995 . The house has a continuous use as doctor's and professional offices dating back to the 1940 's when it was purchased by John Cunney, M.D. That use has been unbroken through 1995, when the property was purchased by Charter Trust. The proposed use is for Dr. Beverly Shafer to maintain a medical office for her practice only within her private residence at 376 Essex Street. Dr. Shafer has been ready to occupy the premises for well over a year now. All of the construction work has been completed. However, because the zoning for this property has been challenged, first to the Board of Appeal and then to Land Court, no Certificate of Occupancy has been issued. As you know, all of the appropriate departments have signed off on the building permit. Please let me know if you would like to conduct a final walk-through of the building prior to issuing the Certificate of Occupancy, and I will make the appropriate arrangements. Sincerely, CHARTER TRUST By /its attorney,, I )�JS EPA C. CORRENTI JCC/ln (fitu of 1--'43alem, Mali 5ar U15etts Ilublic Prnpertq Department Nuildinn Department (One 6alrm (6reen 500-7.15-9595 1st. 300 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer June 30 , 1997 w Serafini , Serafini and Darling Attorneys at Law 63 Federal Street Salem, Mass . 01970 RE : 376 Essex Street Dear Mr . Correnti : This office has received your letter requesting a Certificate of Occupancy at 376 Essex Street . This office will not issue a Certificate of Occupancy until the resolution of the pending appeal before the Land Court . If this office can be of any further assistance in this matter, please do not hesitate to call . Sincerel � IJtLY:i 2Cr' Leo E . Tremblay Zoning Enforceme Officer LET: scm cc: Robert LeDoux Councillor Flynn, Ward 2 COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT Miscellaneous Case No. 227758 JOHN F. DAVIS, Jr., ALYCE M. DAVIS, STEVEN K. GREGORY, MARY KATHRYN BRATUN, PALMER SWECKER, and ELMA SWECKER, Plaintiffs vs. STEPHEN TOUCHETTE, GARY BARRETT, NINA COHEN, ALBERT HILL, and JOSEPH YWUC, AS THEY ARE MEMBERS OF THE ZONING BOARD OF APPEALS OF THE CITY OF SALEM, LEO E. TREMBLAY, AS HE IS THE INSPECTOR OF BUILDINGS AND ZONING ENFORCEMENT OFFICER OF THE CITY OF SALEM, and LINDA W.NICHOLS, AS SHE IS THE SOLE TRUSTEE OF CHARTER TRUST, Defendants This action was tried and a decision of today's date was rendered. In accordance with that decision it is ORDERED AND ADJUDGED that use of the property at 376 Essex Street, Salem, in the manner indicated by the plans submitted with the application for building permit 430-1995 (exhibit 5 in this action), or use of the property in the manner indicated by the"as- built" plans submitted at trial, would be a substantial change in the nonconforming use of the property; and it is further ORDERED AND ADJUDGED that any certificate of occupancy for the property must indicate that only one physician may practice medicine at locus and that that physician must reside at the property at least three week-day nights a week, two Friday nights a month and one Saturday night a month, vacations and emergencies excepted; and it is further ORDERED AND ADJUDGED that this matter is remanded to the board of appeals so that it may render a decision reversing the determination of the building inspector to the extent necessary to comply with this judgment and instructing the building inspector that any f occupancy permit for the property must be in accordance with this judgment. n By the Court. (Kilbom, C.J.) l�D Attest: Charles W. Trombly, Jr. Recorder DATED: June 1, 1998 AtTESTt ` 0^ JO 44/. COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT Miscellaneous Case No. 227758 JOHN F. DAVIS, Jr., ALYCE M. DAVIS, STEVEN K. GREGORY, MARY KATHRYN BRATUN, PALMER SWECKER, and ELMA SWECKER, Plaintiffs vs. STEPHEN TOUCHETTE, GARY BARRETT, NINA COHEN, ALBERT HILL, and JOSEPH YWUC, AS THEY ARE MEMBERS OF THE ZONING BOARD OF APPEALS OF THE CITY OF SALEM, LEO E. TREMBLAY, AS HE IS THE INSPECTOR OF BUILDINGS AND ZONING ENFORCEMENT OFFICER OF THE CITY OF SALEM, and LINDA W. NICHOLS, AS SHE IS THE SOLE TRUSTEE OF CHARTER TRUST, Defendants D-I3QISIQN Plaintiffs seek, in Count I', to annul a decision of defendant Zoning Board of Appeals (the board) of the City of Salem (the city) upholding the August 15, 1995 issuance of a building permit by the city's Building Inspector (the building inspector), defendant Leo E. Tremblay, for property at 376 Essex Street, Salem (locus), owned by defendant Linda W. Nichols, as trustee of 'In a motion to allow an amended complaint, plaintiffs raised Count II, alleging abandonment of the nonconforming use. The motion was withdrawn before I ruled on it. 1 Charter Trust (Charter). The board upheld the building inspector by a vote of three in favor of overturning him and two in favor of upholding him (four votes were necessary to overturn). Plaintiffs attack the building permit, arguing a special permit was required, since (they assert) the proposed use would be a change or substantial extension of a prior nonconforming use. Charter challenges plaintiffs' standing and, in the alternative, defends the board's decision. A trial was held on June 20, 1997 in the County Commissioner's Hearing Room in Salem. A stenographer recorded the testimony. Thirty-two (32) exhibits (some with multiple parts) were introduced into evidence and are incorporated in this decision.' One of the exhibits (11) is a deposition of John V. Cunney, M.D., (Dr. Cunney), who for many years had his office and residence at locus. One chalk was presented. The record also includes a Statement of Agreed Facts executed by all counsel and filed September 2, 1997. The following witnesses testified: the building inspector, Mr. Peter Caron, Eric Reines, M.D., Ms. Catherine Hicks Kirsch, Ms. Linda Nichols, Mr. Oscar Palmer Swecker, Mr. Steven Gregory, Ms. Alyce Davis, Beverly Shafer, M.D., (Dr. Shafer) and Mr. Louis D. Panakio. I viewed locus on the day of trial. The issues are (a) whether plaintiffs have standing and (b) whether the proposed use by Charter is a ehange or substantial extension of the nonconforming use of locus. I find and rule as follows. 1. Locus is a large, handsome, three story structure, appearing from the 'The parties numbered 56 exhibits for identification, but introduced only 32. Almost all the potential exhibits, marked but not introduced, were removed from the record by the parties. 2 J 1s' outside to be a residence. It has been variously described as in the Victorian or Colonial Revival style. Exhibit 6 is a copy of the plans submitted with the application for the building permit at issue in this action. On those plans, which show the first and second floor of locus, the rooms are numbered and I will use those room numbers for convenience. The use designations on exhibit 6 do not correspond to the uses in effect before 1995. The interior of locus has been refurbished but not furnished. The interior layout shows the residential past of locus, although now the rooms are neutral as to use. There is no kitchen on the second or third floors. The area designated for new parking at the rear of the house has not yet been hot-topped. 2. Dr. Cunney purchased locus in 1941. Dr. Cunney and his family resided at locus from 1942-1981 and during that period Dr. Cunney maintained his office there. In his office Dr. Cunney primarily did examinations. He performed no surgery there. His surgery was performed at Salem Hospital. No other physician worked at locus. He employed a full-time secretary and a part-time (20 hours per week) bookkeeper, each of whom used a portion of the waiting room (room 113) as her office and each of whom worked Monday through Friday. Dr. Cunney's employees and patients were not allowed to park in the driveway or at the rear of locus. Patients entered through a rear or (later) a side door to locus. Dr. Cunney's office hours were typically noon to six p.m. on Monday, Tuesday, Thursday, and Friday. He saw approximately twenty (20)patients each day. 3. Dr. Cunney's use of the first floor throughout his tenure was as follows: room 113, waiting room, in which his secretary, a part time biller and all his files were located; room 114, his office; room 110, examination room; room 111, lavatory associated with the medical practice; balance of first floor, residence (including room 103, dining room; room 104, 3 kitchen; rooms 108 A and 108 B [then one room], a family room; and room 107, kitchen storage. Rooms 101 and 102, the front hall, were used for the residence and not patient access.) The entire second floor was used for residential purposes, four bedrooms, a sitting room and a piazza. The third floor was also used for non-medical purposes. 4. In 1981, Dr. Cunney sold his medical practice and locus to Eric J. Reines, M.D. Dr. Reines worked full time and his wife, Sandra Reines, a physician, worked part time at their practice at locus until June, 1987, when the Reines' moved their medical practice to another location. The Reines' use of rooms at locus was the same as Dr. Cunney's, with two exceptions: the Reines' used rooms 108A and 108B (still then combined) occasionally for about nine months for billing work and they stored records and conducted some billing in part of the basement (Dr. Reines testified Dr. Cunney also stored records in the basement, but Dr. Cunney denied that.) They did not allow patient parking at the rear of locus. Occasionally patients used the front door; usually they used the side door, as had been the practice with Dr. Cunney's patients. Dr. Reines saw patients four days a week and his wife saw patients the other day, customarily, and occasionally in the mornings on other days. Neither saw patients on weekends, and their hours customarily ended at 5:00 or 6:00 p.m. Their employees were a full time receptionist and a part time clericathelper. Dr. Reines' practice was substantially similar to Dr. Cunney's, as to types of medical activities. Between them, the Reines' saw from eighty to ninety patients a week. 5. On September 30, 1988, Dr. Reines sold locus to Daniel J. Kirsch, M.D., a medical doctor and practicing psychiatrist, and his wife, Catherine Hicks Kirsch, a social worker engaged in a psychotherapy practice unrelated to her husband's practice. The Kirsches and their two children lived at locus, and the Kirsches saw patients at locus. Mrs. Kirsch's patients used 4 the same side entrance as Doctors Cunney and Reines' patients. Doctor Kirsch's patients used the front door and waited in room 101 before their appointments. Mrs. Kirsch used room 113 as her office and also rooms 110 and 111. Her husband used room 114 as his office and also used rooms 115 and 101. They used the rest of the building for residential purposes. They did not allow patient parking at the rear of locus. Dr. Kirsches' patients came mostly in the mornings; his wife's patient hours included 8:00 p.m. appointments twice a week. Between them, the Kirsches used locus for about forty patient hours a week (the number of hours the premises were used for patients, which could represent a smaller number of patients.) They had no employees. 6. Exhibit 28 is a copy of a memorandum on the stationery of the North Shore Medical Center, dated April 7, 1995, to Dr. Shafer from a Donald M. Geraghty. It states in per: "Subject: Property Purchase The following is to reconfirm our discussion regarding the purchase of the property at 376 Essex Street, Salem, MA. The property will be purchased in the name of a nominee trust to be held by the Law Office of Seraftni, Serafini, and Darling. This trust will lease 60% of the building to you to be used by you and your associate in conjunction with a new female surgeon to be recruited by CPSC. Charter will be responsible for the remaining 40% of the space within the building. The design and use of the space is to be finalized within the final lease document. The purchase options will also be covered in the lease." 7. On July 28, 1995, the Kirsches conveyed locus to the present owner, defendant Linda W. Nichols, as trustee of Charter Trust (a copy of the deed is exhibit 10). North Shore Medical Center, Inc. (formerly Salem Hospital) is the sole beneficiary of Charter Trust. 8. An application for a building permit for locus (exhibit 4) was filed with the building inspector on August 2, 1995. The application stated it was for alteration of an 5 existing structure. The proposed use was listed as "hospital, institutional," with a note stating the proposed use was "Doctor's office." The owner listed was North Shore Medical Center and the total cost of improvement listed was $55,000. The application was signed for the owner by the builder. 9. Exhibit 6 is a copy of the plans (first and second floors) of locus submitted with the building permit application. The labels in the rooms show the entire first floor devoted to medical uses, as is the second floor, except that room 210 (formerly a front bedroom) is unlabeled and room 203 is labeled "enclosed porch". 10. A building permit was issued on August 15, 1995 (Building Permit No. 430-1995) (exhibit 5). A request for an enforcement order(exhibit 7) was filed with the building inspector on October 16, 1995. The building inspector denied the requested enforcement order -by letter dated October 23, 1995 (exhibit 17). An appeal of the building inspector's decision was taken to the board by petition dated November 21, 1995, (exhibit 8). On April 3, 1996, the board filed with the city clerk a decision upholding the building inspector's decision.' Plaintiffs filed their appeal here on April 22, 1996. 11. Exhibit 32 is a copy of an undated lease ' (the lease) from Charter to "Beverly M. Shafer, M.D., P.C., a Massachusetts professional corporation" (signed for that 'After briefly describing the history of locus, Dr. Shafer's testimony (as to her intentions), and the physical changes, the decision recites a three to two decision in favor of rescinding the building permit and that, four votes being required, the petition to revoke was denied. Exhibit 31 is a cover letter from Charter's attorneys to Dr. Shafer, enclosing copies of the lease for her signature. The cover letter is dated September 8, 1995, so the lease was presumably executed some time thereafter. 6 corporation by Dr. Shafer). The premises demised under the lease are described as "a portion of the land and building thereon known as and numbered 376 Essex Street, Salem, Massachusetts, as shown on Exhibit 'A' attached hereto, consisting of approximately 2160 square feet, being sixty percent (60%) of the first and second floors ('medical office space'), as well as the third floor apartment, together with the right to use in common with others entitled thereto, the parking areas and driveway within the Property. As used herein, the term 'Property' shall mean the land and all improvements thereon commonly known as and numbered 376 Essex Street, Salem, Massachusetts. It is understood that the examination rooms within the medical office space designated on Exhibit 'A' will be designed to be used by the Lessee in common with a general surgeon in accordance with a mutually agreed upon schedule." Exhibit A to the lease contains copies of plans for the first and second floor of locus, which appear to be identical to the building permit plans. Color codes distinguish three different kinds of use: blue for"common area,"yellow for"Lessee's exclusive use," and orange for"General Surgeon area." According to those designations, all of the first floor is "common area" except room 103, which is exclusive to Dr. Shafer; on the second floor, room 204 (and apparently room 203 and 205) is dedicated to the"General Surgeon,"room 209 is yellow, with the notation "Dr. M. Sasmor':and room 210 is yellow,-with the designation"Bedroom for Dr. Shafer/Dr Sasmor." The rest of the floor is designated blue. 12. The lease provides, as to use: "The LESSEE shall be entitled to use that portion of the Premises situated on the first and second floors as a physicians office and that portion of the premises situated on the third floor as a residential apartment." 13. The lease provides "LESSOR shall, at its expense, design and renovate the Premises to accommodate LESSEE's medical practice in accordance with the plans 7 and specifications set forth on Exhibit 'B' attached hereto." Exhibit B is a budget for renovations, coming to $103, 068, attached to which are eight pages of "scope of work" listing details of promised work, room by room. 14. The lease provides: "The LESSOR reserves the right and option to lease the remaining forty (40%) percent of the medical office space within the Property, which leased premises shall include the right to use certain examination rooms within the medical office space as designated on Exhibit 'A' in accordance with a mutually agreed upon schedule referenced in paragraph 2 above (the 'additional leased premises'), to a general surgeon, subject to the LESSEE'S right of first refusal to the additional leased premises as set forth below." There then follows a right of first refusal in the lessee, such that, on learning the identity of the proposed general surgeon and his/her lease terms, the lessee may lease the general surgeon space on the same terms. The lease also provides a purchase option in the lessee. 15. Exhibit 51 is a letter to the building inspector from Charter's attorneys, dated January 23, 1996, enclosing a set of"as-built"plans and a parking plan. The letter states:"[w]e will be seeking a Certificate of Occupancy based upon these plans." These plans show changes from the building permit plans. On the first floor: room 114, "waiting" on the building permit plans, becomes "waiting room/living room;" 102, "reception," becomes"foyer;" 104, "break & project room" becomes "kitchen & dining;" and 105, "photo" becomes "mud room." On the second floor: room 204, "office," becomes "sitting room and porch;" 206, "doctor's office," becomes "office manager;" 210, unlabeled, becomes "bedroom;" and 214 "office," become "library." The "As-Built" plans include a plan for the third floor (no such building permit plan), which shows two "guest bedrooms," an "Exercise and TV Room," a large 8 closet, and a "bath." The parking plan shows, in addition to the two spaces in the existing garage, the creation of six new parking spaces made of bituminous paving. 16. Dr. Shafer is a reconstructive and plastic surgeon. She practices at North Shore Medical Center and Beverly Hospital. She now has an office at 355 Essex Street, Salem. She sees patients at that address two days a week and her associate and employee, a Dr. Sasmor, sees patients there a third day of the week. Dr. Shafer's office proved too small and she looked for other space. She found locus and then approached the medical center for assistance in establishing her residence and office there. The legal arrangements described above resulted. 17. Dr. Shafer testified there had been a hurry to get the building permit application filed, she had never seen the plans submitted with it until afterwards, and the plans were prepared by or at the direction of the medical center. She testified her intentions were to use locus as follows: room 114 would be a living room, to be used as a patient waiting room during the day; room 103 would be her office; room 113 would be used for minor surgical procedures, but not reconstructive surgery; room 104 would be used as an eat-in kitchen; she had thought to have a photography room in room 105 but found it was too small, so its proposed use is a mud room. Room 102 is shown as a foyer. The other rooms on the first floor are as labeled on the building permit plans. As to the second floor, Dr. Shafer testified room 206 would be used by her office personnel and room 209 by Dr. Sasmor. The rest of the second floor would be used for residential purposes and the third floor would be entirely residential. Patients would not have access to the second or third floors. 18. Dr. Shafer testified she lives in Boston, Salem, Marblehead and Beverly. Exhibit 36 is a copy of a deed into Dr. Shafer of residential property at 34 Milford Street, Boston, 9 purchased in November, 1995. The medical practice associated with Dr. Shafer would consist of Dr. Sasmor, a full-time office manager, a part-time secretarial helper, a pari-time nurse and a part-time biller. 19. Dr. Shafer testified she does not plan to have a general surgeon at locus and has the ability to control that by exercise of her right of first refusal or her purchase option and that the lease described above has not gone into effect and will be changed. 20. In 1955, under the 1955 Salem zoning ordinance (exhibit 1), locus was in a use district known as "D-Apartment house district," which allowed all uses in the single or general residence districts. At that time the following was an allowed use in the single residence district: "8. Office or studio of a physician or surgeon, dentist, artist, musician, lawyer, architect, teacher or other like professional person located in his or her private residence, provided that there is no display visible from the street nor advertising except an announcement sign or a professional name plate not larger than 288 square inches attached against the dwelling and not protruding therefrom;" 21. In 1965, the zoning ordinance was amended, placing locus in an R-2 two family resi4ential district(exhibit 2} The use of locus as a professional office located in a private residence ceased being an allowed use and, thus, became a nonconforming use. Subsequently, a professional office use within.a dwelling became a specially permitted use in the R-2 district with restrictions on gross office floor area and the number of non-resident employees allowed within the office (sections 5-3[c] and 5-3[b] current ordinance, exhibit 3). 22. The current ordinance also provides: Section 5-30): 10 Extension of nonconformity. Notwithstanding anything to the contrary appearing in this ordinance, the board of appeals may, in accordance with the procedures and conditions set forth in sections 8-6 and 9-4 herein, grant special permits for alterations and reconstruction of nonconforming structures and for change, enlargement, extension or expansion of nonconforming lots, land, structures and uses, provided, however, that such change, extension, enlargement or expansion shall not be substantially more detrimental than the existing nonconforming use to the neighborhood, nor shall this paragraph apply to billboards, signs or other advertising devices." Section 94(b)i "(b) The board of appeals may authorize the issuance of a special permit for a change to another nonconforming use of an existing nonconforming building or use or its alteration or enlargement, provided that the board finds that the use as changed, altered or extended will not depart from the intent of this ordinance and its prior use or degree of use; provided that such building or use is neither increased in volume nor area unreasonably." 23. In fiscal year 1983, Salem became classified as having separate residential and commercial tax rates. From fiscal year 1983 through fiscal year 1995, a residential tax rate was applied to locus. In fiscal year 1996, a split tax rate was applied to locus; the split that year was fifty per cent residential and fifty per cent commercial. STANDING- 24. Plaintiffs are all abutters to locus. Plaintiffs Davis, with their two children, live at 374 Essex Street, immediately to the east of locus. Plaintiffs Swecker live at 380 Essex Street, immediately to the west of locus. Plaintiffs Gregory and Bratun (husband and wife) live, with their son, at 141 Federal Street, immediately to the north of locus. Except for a small portion of the northwest boundary of locus, plaintiffs surround locus. The Davis and Swecker houses are quite close to locus, my estimation is about twenty-five feet. The ll GregoryBratun house fronts on Federal Street and is a substantial distance from the house on locus. In their complaint, plaintiffs allege they "are persons aggrieved by the decision of the Board in that their injury is special and distinct from the concerns of the rest of the community, their legal rights have been or likely will be infringed, and their property interests are adversely affected." At trial, plaintiffs from all of these three abutting properties testified as to their concerns regarding the negative impact the establishment of a business use at locus would have on them as residents and on the value of their properties. 25. Charter has challenged plaintiffs' standing. In order to rebut the presumption afforded abutters, Charter must offer evidence that plaintiffs are not aggrieved persons under the statute. Charter offered expert testimony, the only expert testimony offered at trial, showing no diminution in property value or economic harm will be suffered by any of the plaintiffs due to the proposed use as shown on the as-built plans. I conclude Charter has rebutted the presumption of standing. 26. Because Charter has effectively challenged it, the burden returns to plaintiffs to establish their standing. Marashlian v Zoning Board of Appeals of Newburyport, 421 Mass. 719, 721 (1996). Three plaintiffs testified as to standing: Palmer Swecker, Steven Gregory, and Alyce Davis. Among them, they offer evidence as to all three properties which almost surround locus. 27. Part of Charter's argument as to standing is to quote fears of plaintiffs that certain kinds of activities will be carried on at locus. Charter then argues the evidence at trial shows those activities will not occur. That is to confuse standing with the case on the merits. There is certainly evidence (the building permit application plans) which would support a finding 12 that the first and second floors of locus will be used almost totally for medical purposes, and by a number of doctors. Plaintiff Swecker characterizes that use as a clinic. Whether that is true (the ordinance has a definition of"clinic") or not, the possible use of locus for clinic type activities is real enough so that the question becomes: who has standing to protest (at the board and in this court) such a change of use? If plaintiffs do have standing, then the inquiry turns to the merits of the board's decision. 28. 1 find plaintiffs have standing. An increase in the intensity of medical use at locus and the establishment of parking at the rear of locus would result_in an increase in the amount of traffic crossing the sidewalk at locus. Heretofore, the only cars customarily crossing would be those of the residents of locus, as there never has been patient parking on site. Plaintiffs Swecker and Davis have legitimate safety concerns as to that increase in traffic crossing the sidewalk. All plaintiffs, as immediate abutters,but particularly the Sweckers and the Davis', have a legitimate concern as to the intrusion of patient parking behind locus, where there has been none heretofore'. Also,plaintiffs are immediate abutters in the same residential zoning district . As such, they have a legitimate interest in preserving the integrity of the district against a change to a use which is not allowed of right in the district, and I find their concerns as to the negative impacts of such a change on them credible. C£ Murray v. Board of Anneals of ' The newly established parking would create noise and, depending on the season of the year, lights shining onto at least the Davis property. 0 do not read footnote 5 in Marashlian, 421 Mass. 719, 723-724 as saying headlights can never be a problem.) ' There is evidence (transcript, pages 211 and 213-214) as to the zoning of plaintiffs' properties being in the R-2 district. In any event, given the locations of locus and the lots to one another, and the fact they are all relatively small, it is a justifiable inference they are all in the R- 2 district. 13 Barnstable, 22 Mass. App. Ct. 473, 476 (1986). In so finding, 1 have considered the appraisal testimony of Mr. Panakio and the fact that Essex Street has over the years experienced an increase in professional use. I do not understand the concept of"integrity of the district" in a situation such as this to have been abrogated by Cohen v. .oning Board of Appeals of Plymouth, 35 Mass. App. Ct. 619, 624, fn 5 (1993.) CASE ON THE MERITS 29. Charter defends the decision of the board first on the provisions of the ordinance relative to prior non-conforming uses and also on the basis of the tests set forth in Bridgewater v Chuckran,n, 351 Mass. 20, 23 (1996) and Powers v. Buildinglaap plot of Barnstable, 363 Mass. 648 (1973). 30. Section 8-5 of the current ordinance provides in relevant part: "Sec. 8-5. Nonconforming use of structure. If a use of a structure or a structure and premises in combination exists that would not be allowed in the district under the terms of this ordinance or amendment, the use may be continued so long as it remains otherwise lawful, subject to the following provisions: (1) No existing structure devoted to a use not permitted by this ordinance in the district in which it is located shall be enlarged, extended, constructed, reconstructed, moved or structurally altered, except in changing the use of the structure to a use permitted in the district in which it is located. (2) Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this ordinance, but no such use shall be extended to occupy any land outside such building. (3) On any building devoted in whole or in part to any nonconforming use, work may be done in any period of twelve (12) consecutive 14 months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing to an extent not exceeding ten (I 0) percent of the current replacement value of the building, provided the cubic content of the building as it existed at the time of passage or amendment of this ordinance shall not be increased. (4) If no structural alterations are made, any nonconforming use of a structure or structure and premises may be changed to another nonconforming use, provided that the board of appeals, either by general rule or by making findings in the specific case, shall find that the proposed use is equally appropriate or more appropriate to the district than the existing nonconforming use. In permitting such change, the board of appeals may require appropriate conditions and safeguards in accord with the provisions.o£this ordinance." 31. I find the changes in locus conform to subsections (1) and (3) above. The handicapped ramp is an extension of the building and, apparently, the exterior wall of the building was pierced to provide access for the ramp. However, in light of the protections given handicapped ramps in G. L. c. 40A, § 3, I find the ordinance should be read as permitting those changes. Exhibit 42 (and Mr. Panakio's testimony) is the only evidence of replacement value. It shows the duplication cost to be approximately $953,500. The only evidence of the cost of the work is the building permit value, $55,000. Even assuming that might be low, as is often the case, I accept that the 10 percent maximum has been met. 32. I find the changes do not conform to subsection 8-5 (2). The "time of adoption or amendment of this ordinance" is 1965, when locus became nonconforming. That was during the tenure of Dr. Cunney, and paragraph 3 above shows that many of his rooms were not arranged or designed for the medical use which Charter proposes. Further, the medical use - .the parking - is to be extended into the rear yard. I do not accept Charter's argument that the 15 non-conforming use is a mixed use - residence and professional office and that the ordinance is not meant to sanctify any particular floor plan. If Charter intended to have no more space devoted to office use than Dr. Cunney did, but in different rooms, Charter's argument might have more weight, but such is not the case. 33. How does the proposed use fare under the Powers/Chuckran tests? The first problem is to decide what the proposed use is. One approach is to take the building permit plans at face value and hold Charter to the lease. In combination, those arrangements show a medical building with live-in space for Dr. Shafer. Dr. Shafer protests that the building,permit plans were done without her knowledge and that the arrangements should be judged by the as- built plans. Charter explains away what, to the neighbors, is clearly intended as a clinic. Charter says "residence"means "a residence,"not"principal residence," and that Dr. Shafer will probably stay at locus on three to five week-day nights, half the time on Fridays and a quarter of the time on Saturdays (exhibit 34). 34. If this case involved guessing whether Dr. Shafer will do what she says she will do, the board is charged with making that calculation, not I. In that event, I should affirm, leaving the neighbors to bring an enforcement action at such time (if ever) as matters prove to coincide with their forebodings. However, the proposed use even as described by Charter does not meet the Powers/Chuckran tests. These are: "(1) Whether the use reflects the `nature and purpose' of the use prevailing when the zoning by-law took effect . . . (2) Whether there is a difference in the quality or character, as well as the degree, of use . . . (3) Whether the current use is `different in kind in its affect on the neighborhood."' Powers at 653. Charter bears the burden of proof on these tests. Bridgewater v Chuckran, 351 Mass. at 24. 16 35. The use even as presented by Charter fails the first two tests. The time of comparison is 1965, when the ordinance changed. At that time, Dr. Cunney was in residence. The proposed use (as stated most optimistically for Charter) involves two physicians, not one. In her oral testimony, Dr. Shafer stated that it is not intended that Dr. Sasmor will reside at locus. There is a suggestion in exhibit 34 (Dr. Shafer's letter), however, that Dr. Sasmor "will likely stay overnight 1-2 nights per wk...." Whichever is the case, there will be a difference in kind from matters as they stood in 1965, not just a difference in degree. The"nature and purpose" prevailing in 1965 was a single physician practicing in his residence. Charter proposespvo physicians. The difference is important. Restriction of the use to a single professional is crucial to the establishment and maintenance of the essentially residential character of the use. Charter cites Framingham Clinic. Inc. v. Zoning Board of Appeals of Framingham, 382 Mass. 283, 292- 293 (1981) as support for allowing two doctors to practice at locus. That case supports administrative help but not a second physician in a context such as this case, where the issue is the degree of departure from the situation in 1965 when the use became nonconforming. 36. If Dr. Shafer(by herself) will have more administrative help than Dr. Cunney did, that would be a difference in degree and perhaps the kind of"keeping up with the times"which the cases appear to allow. If Dr. Shafer(by herself) wishes to have her patients park at the rear of the building, that would not be a violation of Powers/Chuckran (however distressing to the neighbors.) Perhaps the board could have decided that Dr. Shafer had to own locus or that it had to be her only residence, but it did not, and the board was not unreasonable in its position. If Dr. Shafer (by herself) maintains the substantial residential presence she professes will occur, the fact that Charter has a right to forty percent of locus and the right to common use 17 c of many of the rooms would not be fatal to Dr. Shafer's position, until Charter sought to exercise those rights. 37. The physical and leasehold arrangements now in place would accommodate a clinic or group practice. They may also accommodate Dr. Shafer residing and practicing by herself. The decision of the board was legally incorrect, if it is seen as approving the issuance of a building permit for the uses proposed in the building permit plans or for the use characterized by the as-built plans and Dr. Shafer's testimony. Plaintiffs have not established that the physical changes to locus allowed by the building permit are improper, only that the proposed use is. Therefore, there is no point in ordering the revocation of the building permit. The proper remedy is for use of locus to be limited, consistent with this decision, and for the certificate of occupancy to be so conditioned.' This matter is remanded to the board, so that it may render a decision reversing the determination of the building inspector to the extent necessary to comply with the judgment in this action, and instructing the building inspector to issue any certificate of occupancy for locus consistent with the judgment. Judgment accordingly. Peter W. Kilbor Chief Justice Dated: June 1, 1998 'Ironically, this is the approach suggested by the building inspector in his letter of October 23, 1995 (exhibit 17) upholding the issuance of the building permit, although from his testimony, it appears he would - contrary to this decision - permit use by Dr. Sasmor as well as Dr. Shafer. 18 _ a Driveway Procedure , Room - Waiting Roots Living Roan �7 Exam Nuns - Tollot — I Hall He Exam g Foyer 'o Exam 4 Entry HC d_n `--- Toilet - Hall r fit DatoYa Kitchen Roan Oifke � Dining - AS BUILT - FIRST FLOOR scale: 1/8 = V —— 0" n � — • n� Closet I office Sitting Roam i Manager and Porch Enclosed Pada _ sow a a as Exercise - and TV Room Hdi DoaWa Bath Office -- Stern Root Hall �dln pout '' Il Guest mail 8edrean Close Bedroom '--� Guoat � Bedroom - \\ O Bath �u L I ' AS BUILT - SECOND FLOOR AS BUILT - THIRD FLOOR scale: 1/8 = V — 0" scale: 1/8 = V — 0" o5/91/95 WED 18:91 FAX 508 745 5708 EUNNEMAN SALEM 10002 (MLT of. ftletn' fiRallon4twefts Public 11raPertg Departmtrtt Sui Ging 'Neparlatent (®ae daleat *Vta 508-745-9595 fvt. 380 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer February 13, 1995 To Whom it May Concern: RE: 376 Essex Street The legal use of the above mentioned property is a grandfathered mixed use, consisting of a physicians office and a residential unit. This use may legally continued until such time as the physicians office has been discontinued for a period of two (2) years or more at which time it would • revert back to a dwelling unit in a R-2 zoning area. If this office can be of any further assistance please do not hesitate to call. Sincerel , Leo E. Tremblay Zoning Enforcement 10feer LET: scm • Panakio Adjusters adjusters and appraisers • for the public November 20, 1995 Director of Facilities NORTH SHORE MEDICAL CENTER, INC. 81 Highland Avenue Salem, Massachusetts 01970 ATTENTION: Mr. Donald DiPanfilo Director RE: DUPLICATION COST ESTIMATE 376 Essex Street Salem, Massachusetts 01970 Dear Mr. DiPanfilo: Pursuant to your request, kindly be advised that I personally inspected the above captioned premises on November 7 & 14, 1995 to inspect the specifications for estimating. the duplication cost of the building. • The building consists of a 2 1/2 story frame, premium quality Victorian dwelling in excellent rehabilitated condition, constructed after the turn of the century. The property is unique starting with its, high ceiling line to its' exotic wood finishes. The cost by today's standard would be prohibitive to duplicate its many improvements including exterior cornice trim and Vermont Slate roof, together with exotic gumwood mantle facades, cornice trim, oak raised panel wainscot and oak panel doors. The specifications and appointments are listed separately in this report. The estimated cost for duplicating this building is twice the cost of a more conventional property. This cost is based upon my experience as a contractor, adjuster and appraiser with over forty years experiences. The duplicating estimated cost calculations are illustrated on the following pages. It is my opinion that the estimated duplicating cost of the building located at 376 Essex Street, Salem, Massachusetts as of the date of inspection is approximately ($953,500) Nine Hundred Fifty Three Thousand Five Hundred Dollars Res ectfully bmitted LOUIS J. A I0, JR / 465 WASHINGTON STREET • LYNN,MASSACHUSETTS 01901 •�(�7)592-757 SAX(617)593-8131 SERAFINI, SERAFINI'AND DARLING • ATTORNEYS AT LAW 63 FEDERAL STREET SALEM. MASSACHUSETTS 01970 JOHN R. SERAFINI. SR. TELEPHONE JOHN R. SERAFINI.JR. 506-744-0212 JOHN E. DARLING 617-561-2743 ELLEN M.WINKLER TELECO PIER JOSEPH C. CORRENTI 506.741.4663 November 20, 1995 Leo E. Tremblay Zoning Enforcement Officer City of Salem One Salem Green Salem, Massachusetts 01970 RE: 376 Essex Street, Salem Dear Mr. Tremblay: Please be advised the this office represents the owner • of the property located at 376 Essex Street (the "Premises") . I am in receipt of your letters dated February 13, 1995 and October 23, 1995, copies of which are attached hereto for your convenience, concerning the proposed use for the Premises. We are in agreement with your statement that the legal use of the Premises is a "grandfathered mixed use of a physicians office and a residential unit". Since approximately 1943, the premises has continually maintained this mixed use. Dr. John Cunney first used the property in such manner until he sold it in 1981 to Dr. Reynes. Dr. Reynes maintained the mixed use until 1988, at which time Dr. Kirsch purchased the property and continued the mixed use. This year Dr. Kirsch . sold the property to the Trustee of the Charter Trust, my client, who proposes to lease the premises to Dr. Beverly Shafer for her practice and private residence, continuing the mixed use. Previously, I have provided to your office a copy of the above- referenced. deed transactions for your file. In 1955, a revised Zoning Ordinance was passed in which the office of a physician or surgeon located in a private residence became an allowed use as of right (not a special permit use) in the Apartment House District in which 376 Essex Street was located. The current Zoning Ordinance, which became effective in 1965, made the professional office use a special permit use and set parameters on professional office use within a dwelling, such as restrictions on the number of non-resident employees and • limitations as to gross floor space (twenty-five percent) which may be dedicated to office use. Leo E. Tremblay • November 20, 1995 Page 2 Clearly, these restrictions do not apply to the existing and proposed "grandfathered" use. It is exactly these changes as made in the 1965 Ordinance from which this use is "grandfathered". PRIOR LEGAL USE A question has arisen as to whether the mixed use of the premises by Dr. Cunney during the 1940's was a "legal" use prior to 1955. This question is particularly relevant as only a "lawful use . existing at the time of the adoption of the ordinance" may be continued or "grandfathered" . In 1941 and throughout the 1940's and 1950's, 376 Essex Street was located in the Apartment House District. The Apartment House District, pursuant to the 1925 Zoning Ordinance, section 4, allowed the following uses as of right: • 1. Any purpose or accessory use authorized in the single or general residence districts; 2 . Residence for three or more families, apartment house, apartment hotel or hotel; 3 . Such accessory uses as are customary in connection with the foregoing uses and are incidental thereto In 1944 the Ordinance was amended so as to add the words "lodging house" into paragraph 2 above after the words "apartment hotel". Uses which were allowed in the "single residence district", and thus the Apartment House District, during the 1940's included the following in Section 2B: 1. Single family detached house; 2. Boarding or lodging houses; S . Hospital, sanitarium or other medical institution: 10. Such accessory uses as are customary in connection with the foregoing uses and are incidental thereto • • Leo E. Tremblay November 20, 1995 Page 3 The premises at 376 Essex Street when purchased by Dr. John Cunney in 1941 and converted into a mixed use of doctors office/residential was a legal use at that time, as the doctors office was an accessory use incidental to the allowed use of "hospital and medical institution". Certainly, since the premises could have been used as of right as a "hospital", the use of a doctors office was allowed as an accessory and incidental use. In 1955, during the next major zoning revisions in the City, the "office of a physician or surgeon . . . located in his or her private residence" was ratified as an allowed use in the Single Residence and thus Apartment House District. Not until 1965 did this use become a Special Permit use and not a use as of right. Of course, Dr. Cunney and his successor were allowed to continue the medical office use at the premises, as a legal non-conforming use. Pursuant to G.L. c. 40A, §6, the • use became "grandfathered" and thus, no zoning relief was necessary. It is this use which has continued unabated through 1995 and which is proposed to continue into the future. The law is clear on this point. Once a use is in compliance with the applicable zoning requirement, regardless of whether that use was previously noncomplying, the use becomes "grandfathered" as to all subsequently enacted zoning changes. Healy, Massachusetts Zoning Practice Under the Amended Zoning Enabling Act, 64 Mass. Law Review 157 (1979) . Therefore, the 1955 Ordinance, section 4 B(8) , makes lawful the "professional office of a physician or surgeon . in his or her private residence" . This then existing use is the continued and proposed use for the premises which becomes "grandfathered" from allzoningchanges or amendments subsequent to 1955. Unfortunately, there has been much misinformation on exactly what the proposed use will be. So that it is clearly understood, the proposed use of the premises is as follows: Dr. Beverly Shafer will maintain a private residence at 376 Essex Street. She will also continue the professional doctor's office use from the premises. Dr. Shafer has one associate physician employed by her who will maintain part-time office hours. There • will be no other physicians at the premises. • Leo E. Tremblay November 20, 1995 Page 4 It is expected that the two doctors will rarely be in the office at the same time, and each will see patients on a limited, part-time basis. Presently, Dr. Shafer maintains her office at 355 Essex Street. She merely seeks to move her office across the street, while enjoying a private residence for her use. The physicians office located within the private premises will include the necessary facilities and assisting personnel to run the office. In discussing the definition of an accessory "professional office" the Massachusetts Supreme Judicial Court has held that where the professional use is allowed, such use "includes the use of all equipment, facilities, and assisting personnel reasonably necessary for the practice of the profession involved . . . Any other construction would ' [destroy] the privilege given in that it would permit [the professional] to have an office but deny him, for all practical purposes, the privilege of using it' (cite omitted) . " Framingham Clinic v. Zoning Board of Appeals of • Framingham, 382 Mass. 283, 292-293 (1981) . The fact that Dr. Shafer has a part-time associate does not change the characterization of the use as physician's office/ residential mixed use or the character, purpose or nature of the use so as to make it noncomplying with the "grandfathered" use and in need of zoning relief. The Massachusetts Supreme Judicial Court in the case of Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973) established three tests for determining whether an alteration of a non-conforming use constitutes a "change or substantial extension" of such use that will subject the resulting use to the application of the current zoning laws, i.e. whether the use will lose its protected grandfathered status. Powers established that if: 1. the resulting use does not reflect the nature and purpose of the non-conforming use prevailing when the zoning laws took effect, 2. there is a difference in the quality or character, as well as the degree, of the resulting use, or 3. the resulting use is different in kind and its • effect on the neighborhood, then the zoning laws are applicable to the resulting use. • Leo E. Tremblay November 20, 1995 Page 5 Powers at 653; see also Cane Resort Hotels, Inc. v. Alcoholic Licensing Board of Falmouth, 385 Mass. 205 (1982) ; Building Inspector of Groton v. Vlahos, 10 Mass. App. Ct. 890, 891 (1980) . Each of these three Powers tests has received extensive judicial consideration and will be discussed below. I. DIFFERENT "NATURE AND PURPOSE" OF USE Despite an increase in volume from the prior non- conforming use, or an extension of hours or periods of operation, a resulting use may still be deemed to reflect the same nature or purpose that previously existed. For example, all of the following were held not to constitute a change or substantial extension of the non-conforming use that would subject the resulting use to the current zoning laws: • an increase in the volume of business of a junkyard, Building Inspector of Seekonk v. Amaral, 9 Mass. App. Ct. 869 (1980) ; an increase in the number of customers, Selectmen of Blackstone v. Tellestone, 4 Mass App. Ct. 311, 315 (1976) ; an increase in the volume and variety of goods sold, Powers; and the change from a seasonable motel to a year-round operation McAleer v. Board of Appeals of Barnstable, 361 Mass. 317 (1972) . Furthermore, alterations in the manner of use to increase efficiency, such as the deployment of improved equipment or more efficient equipment do not necessarily constitute a change in the nature and purpose of the undertaking. The rule appears to turn on whether the alterations are ordinarily and reasonably adapted to the original use. In the present case, the alterations for which a building permit was issued were to upgrade the electrical service and the plumbing and to install two partition walls and a handicap bathroom. These alterations were made to modernize the premises so as to be able to conduct the original use of a doctor's office. • Leo E. Tremblay November 20, 1995 Page 6 II. DIFFERENT "QUALITY, CHARACTER OR DEGREE" OF USE The second Powers test provides that the current zoning laws apply to the alteration of a non-conforming use if the resulting use constitutes a change in the quality or character, as well as the degree, of the prior non-conforming use. This test is similar to the first Powers test, and the courts have tended to discuss both tests simultaneously. The cases discussed below, however, have placed more emphasis on the second Powers test. Situations in which it was found that the changed uses were not different in quality or character, and thus were upheld, include the following: an increase in the volume of wholesale and retail sales, as well as an increase in the number of products manufactured on the premises; Powers, supra; • an increase in the number of trucks and buses stored on premises originally used for the storage of busses and trucks; Blackstone, supra; the change from the storage of fuel products to storage of petroleum derived building materials, Derby Ref. Co. v. Chelsea, 407 Mass. 703 (1990) . A difference in the degree of use is not, by itself, critical. Generally, a "mere increase in the amount of business done, even a great increase would not work a change in use." Marblehead v. Rosenthal, 316 Mass. 124, 128 (1944) . In the present case, while it is difficult to determine exactly, it is believed that the original use, i.e. Dr. Cunney's medical office, was a more intense use than the proposed use of Dr. Shafer's practice. III. DIFFERENT EFFECT ON NEIGHBORHOOD The third Powers test provides that the current zoning laws apply to the alteration of a non-conforming use if the resulting use differs from the prior non-conforming use in its effect on the neighborhood. Only an increase in the severity of the adverse aspects of the use will trigger a "different in kind" is holding. A resulting use that produces dust, fumes and noise will Leo E. Tremblay November 20, 1995 Page 7 not necessarily be found to be different in kind in the effect on the neighborhood, if the prior non-conforming use similarly produced dust, fumes and noise. Derby Ref. Co. , supra at 717. A long line of Supreme Judicial Court opinions have established that the existence of a lawful non-conforming use does not permit the erection of additional structures for extension of the use, absent express authorization by the local zoning law. Of course, no such additional structures are proposed in the present case. Again, the effect on the neighborhood from the proposed use is likely to be less severe than the original use due to the restricted days and hours in which patients are expected to be seen. Finally, Dr. Shafer currently conducts her practice within the very same neighborhood. ABANDONMENT Section 6 of the Zoning Act provides that a municipality's zoning laws may define and regulate non-conforming uses and structures "abandoned or not used" for a period of two years or more. I have previously provided for your review a run- down of title to the property beginning in 1941 which shows that the property has consistently maintained its mixed use of doctors office and residential character, uninterrupted to the present day. CONCLUSION The proposed mixed use of doctors office/residential is a "grandfathered" nonconforming use which has not been abandoned, and thus is allowed to continue. The character, degree and quality of the use, as well as its nature and purpose, has not adversely changed. The practice is -presently within the very neighborhood of the premises and will in all likelihood have less of an adverse impact than the original use. For these reasons, Dr. Shafer should be allowed to occupy the premises and maintain the doctors office/residential use. If you have any questions or require any additional information, please do not hesitate to call me. Ve y tr 1rs,/--� 1 pl 4 JCC/ln r/JOSrPH C. CORRENTI enclosures cc: Robert A. Ledoux, Esq. - #1075 Tug of %trttt In the year one thousand nine hundred and twenty.five. An (frbinana relating to zoning. Be it ordained by the City Council of the City of Salem, as follows: ] *rftn 1. Establishment of Districts. For the purpose of this ordinance, the City of Salem is hereby divided into -seven classes of districts to be known as 1. Single residence districts 2. General residence districts • 3. Apartment house districts 4. Semi-residence districts S. Business districts 6. Industrial districts 7. Unrestricted districts as shown on the map which accompanies this ordinance, entitled: "Zoning Map," filed in the office of the City Engineer, which map, together with all the _ boundary lines and designations thereon, is hereby made a part of this ordinance. Section 2. Single Residence Districts. In the single residence districts, I no new building or structure, or part thereof, shall be constructed or used 'I and no existing building or structure or part thereof, shall be altered, enlarged, reconstructed or used for it A. Any industry, trade, manufacturing, or commercial purpose; or for • B. Any purpose except one or more of the following specified uses: 1. Single family detached house, unless otherwise permitted by the Board of Appeal under the provisions of section 14; ,,� -2- 4. Public school or other public use; 5. Private school, college, museum, or other use of an educational character; 6. Club, except a club the chief activity of which is a service customarily carried on as a business; 7. Public or semi-public institution of a philanthropic, charitable, or religious character, but not a correctional institution; 8. Hospital, sanitarium, or other medical institution; 9. Farm, Market garden, nursery, or greenhouse, including the sale of natural products raised on the premises, but not including any use or the extension of any existing use which would be injurious, obnoxious, or offensive to the neighborhood; 10. Such accessory uses as are customary in connection with the foregoing uses and are incidental thereto, including a private garage, group garage, or private stable • Section 3. General Residence Districts. In the general residence districts, no new building or structure, or part thereof shall be constructed or used and no existing building or structure,or part thereof, shall be altered, enlarged, reconstructed or used for ` A. Any industry, trade, manufacturing, or commercial purpose; or for B. Any purpose except one or more of the following specified uses: 1. Any purpose or accessory use authorized in the single residence district; 2. Double or semi-detached house, two family house, or group house consisting of three or more contiguous single family houses separated by party walls; l 3. Such accessory uses as are customary in connection with the r • foregoing uses and are incidental thereto, including a private garage, group garage, or private stable. t _ " a house districts, no Section 4. aTApartment House Districts, In the apartment • kk ' P , ructed or used and new building or structure or art thereof, shall be consF no existing building or structure, or part thereof, shalt be altered, enlarged reconstructed or used for A. Any industry, trade, manufacturing, or commere1&1 purpose; or for B. Any purpose except one or more of the following specified uses: ,1. Any purpose or accessory use authorized in phe single or general residence districts; 2. Residence for three or .more families, spottpent house, apartment hotel, or hotel; 3. Such accessory uses as are customary in ooflnection with the foregoing uses and are incidental theieto# Including a private garage, group garage, or private stable. •Section 5. Semi-Residence Districts. A. In the semi residence districts, new buildings spd structures may be constructed and used and existing buildings Aad structures may be altered, enlarged, reconstructed, and used for Aay Purpose or accessory use authorized in the single residendfo general residence, or apartment house districts; but for no other. purpose or use, except that B. The first floor, basement, and cellar of any nMN or existing building or structure may be used for one or more of the purposes and accessory uses authorized in the business districts, inetµding a private garage or private stable, group garage, business garage or business stable, gasoline filling station, service station, but Aot a public garage or public stable, or a motor vehicle repair ■hQp' • Section 6. Business Districts. In the business districtN, no new building or p and no existing building t art thereof, structure or shall be constructed or used • In the year one thousand nine hundred and forty-four. AN ORDINANCE to amend an Ordinance relating to Zoning. BE IT ORDAINED by the City Council of the City of Salem, as follows: Section 1. The Zoning Ordinanceis hereby amended by striking out Section 1, and substituting therefor the fol- louing: "Section 1. ESTABLISHMENT OF DISTRICTS.For the Purpose of this ordinance, the City of Salem is hereby divided into eight classes of districts,.to be known as: - 1. Single residence districts, 2. General residence districts, - ' 3. Residence D districts, 4. 'Apartment house districts, _ 5. Semi-residence districts, . 6. .Business districts, ..._ 7. Industrial districts, 8. Unrestricted districts; as shown on the Zoning Map, dated March 28, 1944, and filed in the Office of the City Clerk." I Section 2, The Zoning Ordinance is hereby further, amended by striking out in Section 2 the:cords; "2. Board- ing or Lodging Rouse." • Section 3. The Zoning Ordinance is hereby further- amended urtheramended by inserting after Section 3 the following new section: "Section 3A. RESIDENCE D DISTRICTS. In the resi- dence D districts no new building or structure,or part there- of, shall be constructed or used and no existing building or structure, or part thereof, shall be altered, enlarged, recon- structed or used for A. Any industry, trade, manufacturing or commercial - purpose or for a. B. Any purpose except one or more of the following specified uses: 1. Any purpose or accessory use authorized in the general residence districts; 2. Alteration for more than two families of a dwelling house existing on January 1, 1944, and containing more than 1000 sq. feet of floor space exclusive of halls and stairs, provided the building is not en- larged or the exterior walls substantially altered. The Board of Appeal shall have full and complete power to determine what shall constitute "substan- tial alteration," and are also empowered to prevent any alteration that is detrimental to the neighbor- hood. • Section 4. The Zoning Ordinance is Hereby further anuaided by inserting in Section 4, paragraph B. 2, after words "apartment hotel," the words "lodging house," so that said paragraph will read as follows: 2. Residence for three or more families, apartment house, apartment hotel, lodging house, or hotel;" 21 r Rec. P.B. I/Z2/654 -• 8/9�lb5 b. Automobile, trailer, and boat sales and service. C. Plumbing, carpentry, and sheet metal shops, d� Printing establishments. e. Sales and storage of building supplies. f. Warehousing. g. Wholesale merchandise brokers and wholesale storage. h. Service establishments exceeding the requirements for such businesses in B-1 Districts, such as major laundry, dry cleaning, and baking establishments. i. Churches and similar places of worship, public and private nursery, elementary, and secondary schools, institutions of higher education. • j, Off-street parking and loading facilities and other accessory uses and buildings, provided that such uses are clearly inci- dental to the principal use. 8. I-Districts: Industrial a. All uses permitted in B-4 Districts, subject to all the provisions specified for such uses. B. Special Permit Uses (See Section IX-D for Administration) Provided, however, that if permission of the Board of Appeals is obtained in accordance with procedure and conditions set forth in Section IX-D hereof, buildings and structures may be constructed, altered, enlarged, reconstructed and used, and land may be used for one or more of the following purposes: • tivi Rec. P.B. 1/22/65 8/27/65 1, R-C and R-I Districts: Residential Conservation and One-Family Residential a, Professional offices and other home occupations involving the use of a room or rooms in a dwelling to carry on activities in which goods, wares, or merchandise are not commercially created or handled, provided that any such home occupation: (1) shall be operated entirely within a dwelling unit with no display visible from the street; (2) shall be operated only by the residents of the dwelling unit, with not more than one (1) regular employee not residing in the dwelling unit; (3) shall utilize not more than twenty-five (25) per cent of the gross floor area of the dwelling unit; and (4) shall display not more than one non-electric announce- ment sign of an area not greater than 1'k square feet and attached against the building and not protruding therefrom. b. Marina C. Waterfront Boat Yards d. Waterfront Yacht Clubs_: e. Outdoor Swimming Pools, provided however that they conform to all the requirements of the health Department and the Electric Department. In addition all pools shall be surrounded on all sides with a permanent wale- of fence at least four (4) feet high. The fence shall have only one opening three (3) feet maximum in width. .The gate shall have a locking device ZONING ORDINANCE CrrY OF SALEM In the year one thousand nine hundred and fifty-five An Ordinance relating to Zoning 5 1. Establishment of use districts. 5 2. Use of hmd. 5 3. Historical districts. . $ 4. Single residence districts. $ S. Genual residence districts. 5 6. Apartment house districts. $ 7. Semi-residence district- -§ 8. Business districts. . $ 9. Industrial districts. 5 lo. Soil removal. 5 11. Requirement for garage access. 5 12. Nonconforming bmldiags, shuchues and uses' $ 13. Public service corporations- 1 14. District boundaries. $ 15. Definitions. 5 16. Execution. 5 17. Board of Appeal. $ 18. Repeal or modification. $ 19. Petition and plan for repeal or modification- 1 20. Invalidity. 5 21. Penalty for violation. $ 22. Effective date. Sec. I. Establishment of use districts. For the purpose of this ordinance, the City of Salem is hereby divided into seven classes of use districts, to be known as: A. Historical districts B. Single residence districts C. General residence districts D. Apartment house districts E. Semi-residence districts F. Business districts G. Industrial districts as shown on the Zoning Map dated January, 1955 and filed.in the office of the City Clerk, which map, together with all the boundary -lines and designations thereon,is hereby made a part of this ordi- nance. 50 • /,oxma OEDINANO& Sec. 2. Use of land. No land shall be used in any district for any purpose for which a building structure or part thereof may not be used in the district, or for any purpose which is not specifically allowed in the district. Sec. 8. Historical districts—A. 1, '. In the historical districts,no new building or structure, or part thereof, shall he constructed or used, and no existing building or structure or part thereof shall be altered, enlarged, reconstructed, or used for . . . A- Any industry, trade, manufacturing or commercial purpose; or for B. Any purpose except one or more of the following specified uses: I` 1. Dwelling for not more than two families; 2. Office of a physician, surgeon or dentist, located in his or her private residence,provided that there is no adver- tising except a professional name plate not larger than i 288 square inches attached against the house and not protruding therefrom; • a. Private garage and such accessory uses as are customary in connection with the foregoing uses and are incidental 1I thereto. C. No existing building or structure or part thereof shall be altered; enlarged, or reconstructed m any way that will alter the exterior architectural design of the building or structure. D. The intent and purpose of this section is to Preserve, main- tain and promote the historical character of the historical districts f Sec. 4. Single residence districts--B. ` In the single residence districts, no new building or structure, or part thereof, shall be constructed or used,and no existing build- ing or structure, or part thereof, shall be altered, enlarged, recon- i struoted, or used for . . . A. Any industry, trade, manufactnringi-or commercial pur- pose;or for 51 1 i I: SALEM CITY GODS B. Any purpose except one or more of the following specified uses, provided such specified use is not injurious,,obnoxious, offen- sive or detrimental to the neighborhood; 1. Single-family detached dwelling, unless otherwise per- mitted by the Board of Appeal under Section 17; 2. Church or other place of worship; 3. Municipal buildings; public or private school, college, museum or other use of an educational character, other than trade and business schools and trade and business colleges; 4. Golf course, tennis court,waterfront yacht club, and any building or structure incidental thereto, and similar rec- reational use,provided it is of non-commercial character; 5. Public,semi-public or private institution or organization of a philanthropic, charitable or religious character, but not including cemeteries; and not including any such institution or organization which provides for the care or medical treatment of animals on the premises; 6. Hospital, sanitarium or other medical institution for human treatment or occupancy, but not including nurs- ing and convalescent homes; 7. Farm, market garden or nursery, including the sale of. natural products raised on the premises, but not includ- ing any use or the extension of any existing use which j would be injurious, obnoxious or offensive to the neigh-boyhood; 8. Office or studio of a physician or surgeon, dentist, artist, musician, lawyer, architect, teacher or other like pro- fessional person located in his or her private residence, provided that there is no display visible from the street nor advertising except an announcement sign or a pro- fessioned name plate not larger than 288 square inches I attached against the dwelling end not protruding there- from; 9. Customary home occupation carried on for gain in the _ residence of the occupant, provided there is no display of goods visible from the street nor advertising, except 52 1 . ZONING ORDINANCE . a small announcement sign having an area of not more than 288 square inches and attached against the dwelling and not protruding therefrom, and provided that such occupation shall be carried on by a person only within a dwelling or apartment used by the occupant as his or Ler private dwelling, without employment of help, and . provided that such occupation shall not occupy more than one-third of the area of his or her residence or apart- ment, and provided that such occupation shall not be i carried on in any accessory building; and provided that authorization for such use shall be granted in writing by the Inspector of Buildings; 10. Private garage and such accessory uses as are customary in connection with the foregoing uses and are incidental thereto. Sec. 5. General residence districts—C. In the general residence districts, no new building or strue- tnre, or part thereof, shall be constructed or used, and no existing building or structure or part thereof shall be altered, enlarged, reconstructed or used for . . . A. Any industry, trade, manufacturing or commercial purpose, or for B. Any purpose except one or more of the following specified uses: 1. Any purpose or accessory use authorized in the single residence districts; 2. Two-family dwelling; 3, Nursing and convalescent homes for not more than ten patients in dwellings existing on or before January 1, 1954; 4. Alterations for more than two families but in no case more than four families in dwellings existing before January 1, 1954 provided that no addition to the build- ing is to be constructed that would result in the building occupying a greater ground area than the existing dwell- ing. 53 r I SALEM CITY CODE The Board of Appeal may vary the application of this ordinance in specific cases to ellow alterations to provide for an additional apartment or apartments and may also vary the application of this ordinance to allow altera- tions to provide for more than four families, provided the Board of Appeal is unanimous in their opinion that the proposed changes will not be detrimental to the neighborhood or otherwise conflict with the spirit and intent of the Zoning and Building Ordinances. 5. Waterfront boatyards; 6. Group garage; 7. Such accessory uses as are customary in connection with the foregoing uses and are incidental thereto. Sea 6. Apartment house districts—D. In the apartment house districts, no new building or structure, or part thereof,shall be constructed,or used,and no existing build- ing or structure or part thereof shall be altered, enlarged, reton- structed or used for . . . A. Any industry, trade, manufacturing or commercial purpose, or for B. Any purpose except one or more of the following specified uses: 1. Any purpose or accessory use authorized in the single or general residence districts; 2. Residence for three or more families,lodging house,nnrs- ing or convalescent home, apartment house, apartment hotel or hotel; 3. Trade and business schools and colleges; 4. Club, except a club the chief activity of which is a service customarily carried on as a business; 5. Such accessory uses as are customary in connection with the foregoing uses and are incidental thereto. Sec. 7. Semi-residence districts—E. A. In the semi-residence districts, new buildings and structures 54 21 Rec. P.B. I/22/65 8/2-1/6-5 b. Automobile, trailer, and boat sales and service. C. Plumbing, carpentry, and sheet metal shops. d� Printing establishments. e. Sales and storage of building supplies. f. Warehousing. g, Wholesale merchandise brokers and wholesale storage. h. Service establishments exceeding the requirements for such businesses in B-1 Districts, such as major laundry, dry cleaning, and baking establishments. i. Churches and similar places of worship, public and private nursery, elementary, and secondary schools, institutions of higher education. • j. Off-street parking and loading facilities and other accessory uses and buildings, provided that such uses are clearly inci- dental to the principal use. 8. I-Districts: Industrial a. All uses permitted in B-4 Districts, subject to all the provisions specified for such uses. B. Special Permit Uses (See Section IX-D for Administration) Provided, however, that if permission of the Board of Appeals is obtained in accordance with procedure and conditions set forth in Section IX-D hereof, buildings and structures may be constructed, altered, enlarged, reconstructed and used, and land may be used for one or more of the following purposes: ' - zr,`rs by rr + Tii^tr T".i,h1,.& cht94n 5: lv�i.. ma 'y Rec. r.B. 1/22/65, . 8/27/65 1. R-C and R-I Districts: Residential Conservation and One-Family Residential a, Professional offices and other home occupations involving the use of a room or rooms in a dwelling to carry on activities in which goods, wares, or merchandise are not commercially created or handled, provided that any such home occupation: (1) shall be operated entirely within a dwelling unit with no display visible from the street; (2) shall be operated only by the residents of the dwelling unit, with not more than one (1) regular employee not residing in the dwelling unit; (3) shall utilize not more than twenty-five (25) per cent of the gross floor area of the dwelling unit; and (4) shall display not more than one non-electric announce- ment sign of an area not greater than 1'k square feet and attached against the building and not protruding therefrom. b. Marina C. Waterfront Boat Yards d, Waterfront Yacht Clubs„_ e. Outdoor Swimming Pools, provided however that they conform to all the requirements of the health Department and the Electric Department. In addition all pools shall be surrounded Mon all sides with a permanent wale of fence at least four (4) feet high. The fence shall have only one opening three (3) feet maximum in width. The gate shall have a locking device Titu of I$tticmll massac4usetts • �} r'O Public Propertg Department iguilbing i3epartment Mae 6alem <6reen 508-745-9595 Ext. 380 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer November 21 , 1995 City of Salem Solicitor Attorney LeDoux Federal Street Salem, Mass . 01970 RE: 376 Essex Street Dear Attorney LeDoux: • I realize that you are in receipt of the material I have received from Attorney Joseph Correnti, who is with Serafini , Serafini and Darling, concerning the above mentioned property. I am at this time requesting your legal opinion as to the use of the property located at 376 Essex Street . It is my opinion that the legaluse is a nonconforming mixed use of residential and Doctor ' s Office. This was the legal use according to the 1925 City of Salem Zoning Ordinance. In 1955 our zoning changed and Section 12 of the 1955 City of Salem Zoning Ordinance reads as follows : Non-conforming buildings , structures and uses . A. Any lawful building or structure or premises or part thereof existing at the time of the adoption of this ordinance or any amendment thereof may be continued although such building, structure or use does not conform to the provision thereof. In 1965 the City of Salem Zoning Ordinance were again changed and I refer you to Section 8-3 of the Zoning Ordinance which reads; Section 8-3 Nonconforming use of Land- Where use of land exist that is made no longer permissible under the • terms of this ordinance or amendment, such use may be continued so long as it remains otherwise lawful , subject to the following provisions ; 1 . Such nonconforming use shall not be enlarged, increased or extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this ordinance . 3 . If any nonconforming use of land is discontinued for any reason for a period of twelve ( 12 ) consecutive months, any subsequent use of such- land shall conform to the regulations specified by this ordinance for the district in which such land is located. This property has shown a continued use as a residential unit and a Doctors office and per zoning may ✓ continue in my opinion. Now I refer you to Section 8-5 of the 1965 zoning ordinance which reads ; Section 8-5 Nonconforming use of structure. If a use of a structure or a structure and premises in combination exist that would not be allowed in the district under the terms of this ordinance or amendment, the use may continue as long as it remains otherwise lawful , subject to the • following provision; ( 2 ) Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this ordinance, but no such use shall be extended to occupy any land outside such building. I do not feel the density regulations are being changed in any way, and the property does have adequate ✓ parking for the use of a dwelling unit in a doctors office . Should the amount of allowed doctors on premises be subject the allowed area of parking on premises? Should the allowed doctors office, be allowed an associate to practice on premises , and if so how many? This office will not issued an occupancy permit at this location until a legal determination has been received by your office. • Thank you in advance for your anticipated cooperation in this matter. Sincerely, --�-UY. ' Leo E . Tremblay Zoning Enforcem Officer LET: scm cc: David Shea Joseph Correnti Councillor Harvey, Ward 2 Jane Stirgwold Stephen Touchette Len Femino • • �ONDIT� ' • �Cv�� � 'fie 9`pylNg CITY OF SALEM . MASSACHUSETTS ROBERT A.LEDOUX Legal Department LEONARD F.FEMINO City Solicitor 93 Washington Street Assistant city Solicitor 508&745.3W Salem, Massachusetts 01970 50&a21a9so December 8, 1995 Mr. Leo E. Tremblay Zoning Enforcement Officer Building Department One Salem Green Salem, Massachusetts 01970 RE: 376 Essex Street Dear Mr. Tremblay: • By letter dated November 21, 1995, you requested my legal opinion as to the use of the property located at 376 Essex Street. My opinion follows . In order to understand the problem that we have today, it is necessary to review some of the history of this property, as well as the history of zoning in Salem. The City of Salem adopted zoning in 1925. At that time the zoning by-law allowed accessory uses that were customary in connection with the principal uses as listed in the by-law. one of those used listed was hospital, sanitarium, and other medical institutions. This is what is perceived to be the justification for Dr. Cunney using the house at 376 Essex Street as a medical office from 1941 until .1955 . There was a change in the zoning in 1955 in which an apartment house district was established (the district in which this building is located) . The ordinance allowed in an apartment house district, an office or studio of a physician or surgeon, . . . . . . , located in his or her private residence. • Dr. John V. Cunney, as mentioned earlier, purchased the property in question in 1941 . From 1941 until 1981, Dr. Cunney used the property as his private residence and his office as a physician. Mr. Leo E. Tremblay Page Two December 8, 1995 By the changes under the zoning by-law of 1955, the use by Dr. Cunney of the property in question became a lawful use and therefore lost its non-conforming status . In 1965 the zoning in the City of Salem once again changed and the use of offices or other home occupations in a dwelling became a special permit use under the provisions of §5B1 of the zoning by- law. Inasmuch as the prior use of the property by Dr. Cunney was a valid, legal use in accordance with the 1955 statute, the 1965 change made the use of 376 Essex Street a non-conforming use as a doctor's office within his or her private residence. As I understand it, the property in question was sold in 1981 to Drs . Reynes who were both physicians . I further understand that this was their private residence and they used the property as • their office. The property again was sold in 1988 to a Dr. Kirsch and his wife, who was either a psychologist, as I understand it, or a licensed social worker. They used the property in question as their office and private residence until the property was sold to Charter Trust. It seems clear that the non-conforming use as established as a result of the 1965 zoning by-law can continue on indefinitely into the future so long as the physician's office is maintained in his or her private residence. What appears to be the controlling case in this area is the case of Powers vs Building Inspector of Barnstable, 363 Mass 640A, 296 Northeast 2d 491 ( 1973) . This case speaks at length about expansion of non-conforming uses . It does state that a non-conforming use of the premises may not only be continued, but also increased in volume in certain instances. We have been informed that Dr. Shafer has an associate physician who is employed by her and who will maintain part-time office hours . Inasmuch as 376 Essex Street in its continued use as a medical office is a grandfathered non-conforming use within that zone, this use is not governed by the 1965 ordinance which limits the number of non-resident employees and gross floor space used as offices . Mr. Leo E. Tremblay Page Three December 8, 1995 Having said all of the above, it is my opinion that Dr. Shafer may maintain her medical practice at 376 Essex Street so long as she maintains her private residence at the same address and may employ an associate physician in her practice at the same address . I would be happy to speak with you in connection with the same. Very— e trT yQurs,,A4 ROBERT A. LEDOUX RAL/leh • EXHIBITS TO HEARING BEFORE SALEM ZONING BOARD OF APPEAL ON BEHALF OF CHARTER TRUST JANUARY 24, 1996 1. As-Built Plans 2 . Parking Plan 3. Definitions - 4. Zoning History 5. Letter from Building Inspector dated February 13, 1995 6. Replacement Cost Estimate of Panakio Adjusters dated November 20, 1995 7. Letter to Building Inspector from charter Trust dated November 20, 1995 including historical zoning excerpts 8. Letter from Building Inspector to City Solicitor dated November 21, 1995 9. Zoning Opinion Letter from City Solicitor dated December 8, 1995 Driveway Procedure Ci , Room Waiting Room/ Living Froom ❑ Exam Nurse Toilet Hall Hall Exam 3 == Foyer I — -.. n d Exam HC n U) _-- Entry - Toilet _ -:. — — d Hall Doctor's Kitchen Room Office & Dining — '-- AS - BUILT FIRST FLOOR scale: 1/8 = 1'— 0" Office Sitting Room Manager and Porch Enclosed ' Porch Closet Closet Closet Hall Doctor's Office Stairs Roof \ u Closet Hall Bedroom Bath library AS - BUILT SECOND FLOOR scale: 1/8 = 1'— 0" Closet Exercise and TV Room ILj Bath Hall do Guest Bedroom Closet -- Guest d Bedroom 0 v AS - BUILT THIRD FLOOR scale: 1/8 = 1'— 0" i ..,4 t I Pc+�rr Irae FX,STI He � • '\ _ � X I iNG 91%R K9 YPj Sys • ui�rtm aeric ms OU. a,6070 i 6,1LLR�I - S-QII)G.. •1) 64668-)taa .)16,14) )n1T PROPOSED 7 RENOVATIONS at '376 ESSEX STREET 66U164 lull .RTW,..6 46 MW s i i � • 1955 1965 New Zoning Ordinance New Zoning Ordinance allows doctors office requires special permit for within private residence. professional office within residence. 1940 1950 1960 1970 1980 1990 2000 1988 Dr. Kirsch purchases house from Dr. Reines;maintains 1941 professional office use Dr. Cunney purchases within private residence. house;used as doctor's office and residence. 1981 1995 Dr.Reines purchases Charter Trust on behalf house from Dr. Cunney; of Dr. Beverly Shafer maintains professional purchases house from office use within private Dr. Kirsch;maintains residence. professional office within private residence. Domicile "Domicile"and "Residence" are not identical terms, for a person may have two places of residence, as in the city and in the country, but only one domicile. Residence means living in a particular locality, but domicile means living in that locality with intent to make it a fixed and permanent home. A person may have only one legal domicile at one time, but he may have more than one residence. Black's Law Dictionary, Fifth Edition 1979 MG.L.A. c.1, sec. 1 CITY OF SALEM ZONING ORDINANCE - 1955 ALLOWED USES AS OF RIGHT Sec. 6. APARTMENT HOUSE DISTRICTS - D B. 1. any purpose or accessory use authorized in the single or general residence districts; . . . Sec. 4. SINGLE RESIDENCE DISTRICTS - B B. 8. Office or studio of a physician or surgeon... located in his or her private residence... . In 1955, 376 Essex Street was located in the Apartment House District. Residence Personal presence at some place of abode with no present intention of definite and early removal and with purpose to remain for undetermined period, not infrequently, but not necessarily with design to stay permanently. . . Residence implies something more than mere physical presence and something less than domicile. Black's Law Dictionary, Fifth Edition 1979 MG.L.A. c.1, sec. 1 21 Rec. P.B. 1/22/65 8/27/65 b. Automobile, trailer, and boat sales and service. C. Plumbing, carpentry, and sheet metal shops. d_ Printing establishments. e. Sales and storage of building supplies. f. Warehousing. g. Wholesale merchandise brokers and wholesale storage. h. Service establishments exceeding the requirements for such businesses in B-1 Districts, such as major laundry, dry cleaning, and baking establishments. i. Churches and similar places of worship, public and private nursery, elementary, and secondary schools, institutions of higher education. j, off-street parking and loading facilities and other accessory uses and buildings, provided that such uses are clearly inci- dental to the principal use. 8. I-Districts : Industrial a. All uses permitted in B-4 Districts, subject to all the provisions specified for such uses. B. Special Permit Uses (See Section IX-D for Administration) Provided, however, that if permission of the Board of Appeals is obtained in accordance with procedure and conditions set forth in Section IX-D hereof, buildings and structures may be constructed, altered, enlarged, reconstructed and used , and land may be used for one or more of the followin purposes: "✓ ,.:.�. 5`.�.%�.wrif r x t >- d 4RS4��F� 1,�'Olt!u 7��; Rec. P.B. 1/22/65 8/27/65 1. R-C and R-I Districts: Residential Conservation and One-Family Residential a. Professional offices and other home occupations involving the use of a room or rooms in a dwelling to carry on activities in which goods, wares, or merchandise are not commercially created or handled, provided that any such home occupation: (1) shall be operated entirely within a dwelling unit with no display visible from the street; (2) shall be operated only by the residents of the dwelling unit, with not more than one (1) regular employee not residing in the dwelling unit; (3) shall utilize not more than twenty-five (25) per cent of the gross floor area of the dwelling unit; and (4) shall display not more than one non-electric announce- ment sign of an area not greater than 1'k square feet and attached against the building and not protruding therefrom. b. Marina C. Waterfront Boat Yards d. Waterfront Yacht Clubs__ e. Outdoor Swimming Pools, provided however that they conform to all the requirements of the health Department and the Electric Department. In addition all pools shall be surrounded on all sides with a permanent wall of fence at least four (4) feet high. The fence shall have only one opening three (3) feet maximum in width. The gate shall have a locking device y #1075 (nt#1J of i rat In the year one thousand nine hundred and twenty five. An (Ordinanre relating to zoning. Be it ordained by the City Council of the City of Salem, as follows: *ratan 1. Establishment of Districts. For the purpose of this ordinance, ' the City of Salem is hereby divided into seven classes of districts to be known as 1. Single residence districts 2. General residence districts 3. Apartment house districts 4. Semi-residence districts 5. Business districts 6. Industrial districts I 7. Unrestricted districts as shown on the map which accompanies this ordinance, entitled: "Zoning Map," filed in the office of the City Engineer, which map, together with all the boundary lines and designations thereon, is hereby made a part of this ordinance. Section 2. Single Residence Districts. In the single residence districts, I no new building or structure, or part thereof, shall be constructed or used and no existing building or structure or part thereof, shall be altered, enlarged, reconstructed or used for j A. Any industry, trade, manufacturing, or commercial purpose; or for B. Any purpose except one or more of the following specified uses: 1. Single family detached house, unless otherwise permitted by , the Board of Appeal under Lhe provisions of section 14; �,� i -2- 4. Public school or other public use; 5. Private school, college, museum, or other use of an educational character; 6. Club, except a club the chief activity of which is a service customarily carried on as a business; 7. Public or semi-public institution of a philanthropic, charitable, or religious character, but not a correctional institution; 8. Hospital, sanitarium, or other medical institution; 9. Farm, Market garden, nursery, or greenhouse, including the sale of natural products raised on the premises, but not including any use or the extension of any existing use which would be injurious, obnoxious, or offensive to the neighborhood; 10. Such accessory uses as are customary in connection with the foregoing uses and are incidental thereto, including, a private garage, group garage, or private stable Section 3. General Residence Districts. In the general residence districts, no new building or structure, or part thereof shall be constructed or used and no existing building or structure,or part thereof, shall be altered, enlarged, reconstructed or used for A. Any industry, trade, manufacturing, or commercial purpose; or for B. Any purpose except one or more of the following specified uses: 1. Any purpose or accessory use authorized in the single residence district; 2. Double or semi-detached house, two family house, or group house consisting of three or more contiguous single family houses r separated by party walls; 3. Such accessory uses as are customary in connection with the foregoing uses and are incidental thereto, including a private garage, group garage, or private stable. i - Section 4. Apartment House Districts. In the apartment house districts, no new building or structure, or part thereof, shall be constructed or used and ell be altered, enlarged no existing building or structure, or part thereof, sh reconstructed or used for A. Any industry, trade, manufacturing, or commerclsl purpose; or for B. Any purpose except one or more of the following specified uses: 1. Any purpose or accessory use authorized in the single or general residence districts; 2. Residence for three or more families, sperEment house, apartment hotel, or hotel; 3. Such accessory uses as are customary in cOflftection with the foregoing uses and are incidental theretOt including a private garage, group garage, or private stable. Section 5. Semi-Residence Districts. A. In the semi residence districts, new buildings Bnd structures may be constructed and used and existing buildings And structures may be altered, enlarged, reconstructed, and used for Any purpose or accessory use authorized in the single residencO, general residence, or apartment house districts; but for no other purpose or use, except that B. The first floor, basement, and cellar of any ngW or existing building or structure may be used for one or more of thg purposes and accessory uses authorized in the business districts, inclµding a private garage or private stable, group garage, business garge or business stable, gasoline filling station, service station, but not a public garage or public stable, or a motor vehicle repair rhpP- r Section 6. Business Districts. In the business districts, no new building or d and no existing building structure, or part thereof, shall be constructed or use ''I W PWT--& 1 -}-ioDag PAy� a(Z(y�WA v o tATt tttltlot 1Q M P � 10 �!0/1� ' 19T -.. (�KIt�IT� tt�}� , o YSYSIN MIti FM1N5 9 " t.g'CTYfl GES - - INS111011 Of ARCRITECTS 1 " �... .� 96 RK>PJ DSON ROAD j MELROSE, MA 02176 _— 617-665-722J" .PROJECT ililE - - - : PROPOSED I' ,-; ;RENOVATIONS at - - 376 ESSEX STREETSIrb , _4 .4� SALMMAf 1 -- -- Isa'u-1c- Fora ORA/ INE TSTIA ^M r 3 ' 'DATE * RAr I N. H'6 r E A L PROJECT N 9 BACK go of f ' K/L-0I -_ r - . a1T�M z:>P.1vE ^� � • .e '�1�JfIT'� ;�IQoP�T( jl r1� • • . r l • c. III • ■ t HoL5E _ >' X i ` 91x es �Ry, o violin Rwtre,LR 9 • lgI/-I-�P. ES 'T` INSiR•IE 0/ASCOMCTS 1 9!SfUUra06bS GOAD - MELROSE. MA 02170 4f _ 6 A 3- 7223 ► EEIECT ililt � w : PROPOSED RENOVATIONS at '376 ESSEX STREET SALEMNA tSMHCw- P;eHae '/ R I DRAWING TITLA DATE III RAVIN'S as e„E 9I6 t,wte�? DRAWN of J0 r RONAN, SEGAL & HARRINGTON ATTORNEYS AT LAW FIFTY-NINE FEDERAL STREET JAMES T.RONAN(1922-1987) SALEM,MASSACHUSETTS 01970-3470 JACOB S.SEGAL MARY PIEMONTE HARRINGTON (508)7440350 GEORGE W.ATKINS,III BRIAN P.CASSIDY FAX(508)7447493 H-664 FILE NO. CERTIFIED MAIL RETURN RECEIPT REQUESTED April 25, 1996 Mr. Leo E. Tremblay Building Inspector City of Salem One Salem Green Salem, MA 01970 RE: 376 Essex Street, Salem, MA Dear Mr. Tremblay: In accordance with the provisions of Massachusetts General Laws Chapter 40A, Section 17, enclosed is a Notice of Appeal of a decision of the City of Salem Zoning Board of Appeal regarding the above- referenced property and a copy of a Commplaint filed in the Land Court Department, being Civil Action No. 227758 . ery truly PkinsIII eorge W. kmb Enclosures NOTICE OF APPEAL OF A DECISION OF THE ZONING BOARD OF APPEAL FOR THE CITY OF SALEM BY WAY OF A COMPLAINT FILED IN THE LAND COURT The Plaintiffs named in the attached Complaint hereby give notice of their Appeal of the Decision of the Zoning Board of Appeal of the City of Salem entitled "Decision On The Petition Of Donald L. Hodgeman et. al . Requesting The Board To Rescind The Decision For The Property Located At 376 Essex Street (R-2 ) " dated March 20 , 1996 , and filed with the Salem City Clerk April 3 996 . L� GeorgeW. Atkin , II BBO No . 023350 Ronan, Segal Harrington 59 Federal Street Salem, Massachusetts 01970 ( 508 ) 744-0350 r COMMONWEALTH OF MASSACHUSETTS ESSEX, ss . DEPARTMENT OF THE LAND COURT Civil Action No. JOHN F. DAVIS, Jr. , ALYCE M. DAVIS, STEVEN K. GREGORY, MARY KATHRYN BRATUN, PALMER SWECKER and ELMA SWECKER, Plaintiffs, V. STEPHEN TOUCHETTE, GARY BARRETT, NINA COHEN, ALBERT HILL, and JOSEPH YWUC, AS THEY ARE MEMBERS OF THE ZONING BOARD OF APPEAL OF THE CITY OF SALEM and LEO E . TREMBLAY, AS HE IS THE INSPECTOR OF BUILDINGS AND ZONING ENFORCEMENT OFFICER OF THE CITY OF SALEM and LINDA W. NICHOLS, TRUSTEE AS SHE IS THE SOLE TRUSTEE OF CHARTER TRUST, Defendants . COMPLAINT 1 . This is an appeal from a, decision by the Zoning Board of Appeal of the City of Salem, Massachusetts , ( hereinafter the "Board" ) wherein the Board exceeded its authority by denying a petition to rescind a building permit issued by the office of the Defendant Leo E . Tremblay, Inspector of Buildings of the City of Salem (hereinafter "Building Inspector" ) with reference to the building at 376 Essex Street, Salem, Massachusetts, (hereinafter "Building" ) owned by the Defendant Charter Trust (hereinafter "Charter" ) . The Board exceeded its authority in that the building permit authorized a substantial IF change and extension of an existing nonconforming use of the Building to a proposed use which will provide for its use in a substantially different manner contrary to the Salem Zoning Ordinance and Massachusetts General Laws Chapter 40A, Section 6 , which provide that no such change and extension shall be permitted unless there is a special permit finding by the permit granting authority. Parties 2 . The Plaintiff John F . Davis , Jr. , is a natural person residing at 374 Essex Street, Salem, Massachusetts 01970 , and is an abutter to the Building. 3 . The Plaintiff Alyce Davis is a natural person residing at 374 Essex Street, Salem, Massachusetts 01970 , and is an abutter to the Building. 4 . The Plaintiff Steven K. Gregory is a natural person residing at 141 Federal street, Salem, Massachusetts 01970 , and is an abutter to the Building. 5 . The Plaintiff Mary Kathryn Bratun is a natural person residing at 141 Federal Street, Salem, Massachusetts 01970, and is an abutter to the Building. 6 . The Plaintiff Palmer Swecker is a natural person residing at 380 Essex Street, Salem, Massachusetts 01970 , and is an abutter to the Building. 7 . The Plaintiff Elma Swecker is a natural person residing at 380 Essex Street, Salem, Massachusetts 01970 , and is an abutter to the Building. 8 . The Defendant Stephen Touchette is a member of the Board and resides at 45 Gallows Hill Road, Salem, Massachusetts 01970 . 9 . The Defendant Gary Barrett is a member of the Board and resides at 7 Patton Road, Salem, Massachusetts 01970 . 10 . The Defendant Nina Cohen is a member of the Board and resides at 22 Chestnut Street, Salem, Massachusetts 01970 . 11 . The Defendant Albert Hill is a member of the Board and resides at 4 Larkin Lane, Salem, Massachusetts 01970 . 12 . The Defendant Joseph Ywuc is a member of the Board and resides at 16 Pleasant Street, Salem, Massachusetts 01970 . 13 . The Defendant Leo E . Tremblay is the Building Inspector and Zoning Enforcement Officer of the City of Salem with an office at One Salem Green, Salem, Massachusetts 01970 . 14 . The Defendant Linda W. Nichols , Trustee, is the sole trustee of Charter Trust, having a business address at 63 Federal Street, Salem, Massachusetts 01970 . Jurisdiction 15 . This court has jurisdiction to hear this matter pursuant to Massachusetts General Laws Chapter 40A, Section 17 . Facts 16 . On or about August 2 , 1995 , an "Application for a Permit to Build an Addition, Make Alteration or New Construction" (hereinafter "Building Permit Application" ) at 376 Essex Street in Salem, Massachusetts , was filed with the office of the Defendant Building Inspector, a copy of which is attached as Exhibit 1 . The building permit was issued on August 15 , 1995 by an approval noted on the Building Permit Application. 17 . The Building is located in a two-family residential zoning district under the provisions of the City of Salem Zoning Ordinance . 18 . The existing use of 376 Essex Street is principally as a single-family residence with a nonconforming secondary use as a two- room physician' s office located on the first floor of the residence for the use of the resident physician. The physician's office is an unauthorized use under the current zoning ordinance, but an allowed use in that it existed prior to the current zoning ordinance provision affecting such use . 19 . The proposed use of the Building as described in the Building Permit Application and plans attached thereto is for medical offices for nonresident physicians utilizing all of the first floor and the majority of the second floor of the structure. 20 . A request for enforcement of the zoning ordinance was submitted to the Building Inspector by the Plaintiffs and others and following the refusal of the Building Inspector to take enforcement action, a petition was filed with the Board requesting that the building permit for the Building be rescinded, all in accordance with the provisions of Massachusetts General Laws Chapter 40A, Sections 8 and 15 . 21 . After public hearings , the Board denied the petition to rescind the decision of the Building Inspector by written decision dated March 20 , 1996 , filed with the Salem City Clerk on April 3 , 1996 . A certified copy of said decision is attached herewith as Exhibit 2 . 22 . The Plaintiffs herein, all abutters to the Building, are persons aggrieved by the decision of the Board in that their injury is special and distinct from the concerns of the rest of the community, their legal rights have been or likely will be infringed, and their property interests are adversely affected. 23 . The decision of the Board exceeded its authority in that: (a) the proposed use of the Building is a substantial change and extension of the existing nonconforming use which will result in use of the Building in a substantially different manner; (b) Massachusetts General Laws Chapter 40A, Section 6 , and the Salem Zoning Ordinance provide that no substantial change and extension of a zoning nonconformity shall be permitted without a special permit finding by the permit granting authority, and (c ) the building permit in this matter was issued by the Building Inspector without a special permit application by Charter, and without a special permit finding by the Board. WHEREFORE, the Plaintiffs herein pray that the decision of the Board be annulled, and the building permit issued by the Building Inspector be rescinded. PLAINTIFFS John F . Davis , Jr. , Alyce M. Davis , Steven K. Greg=y, Mary Kathryn Bratun, Palmer Swecker and Elma Swecker, By thei stCorney, ge W. Atki s , 'III BBO No . 02335 Ronan, Segal Harrington 59 Federal Street Salem, Massachusetts 01970 ( 508 ) 744-0350 EXHIBIT 0 30� �! City of Salem 1 ward x APPLICATION FOR PERMIT TO BUILD ADDITION, MAKE ALTERATIONS OR NEW CONSTRUCTION IMPORTANT-Applicant to complete all items in sections:1, 11, ill, N, and 1X. I, AT(LOCATION) 376 g7SSZx s/- DISTRICT LOCATION m' (S TREEn OF BETWEEN ICr+a555t1tt>=0 ANO µOSSSMEET) BUILDING LOT SUBDIVISION .--LOT BLOCK SIZE IL TYPE AND COST OF BUILDING -All applicants complete Parts A -D A. TYPE OF IMPROVEMENT 0. PROPOSED USE-FOR"DEMOLITION"USE MOST RECENT USE 1 ❑ New buadur9 RMltltntW Norreaidentlel 2 ❑ Addmon(ft resrlerinaL enter number or new 12 ❑ One tamsy 18 ❑ Amrsemem.recreational nouwng units added.A any.in part O. 13) 13 ❑ Two a mora family•Enter number 19 ❑ clnrrn caw reiigiars 3 2rmeration(see 2 abovel of uruts 20 ❑ Itldlatrel .. 21 ❑ Parking garage r 4 ❑ Reber reptacernern 14 ❑ Trarerem hotel.motel a dormitory' 22 ❑ Semce station-raba+garage Enter number of units 5 ❑ Wtedcag(d mrfatamayresidential ertssr arrrrber 23 g3-�Hosp4aL nsuhnbnel of unns in buudarg n Part a 131 15 ❑ Garage 24 ❑ Office.bank ptdOS—nel 6 ❑ Moving treiocatanl 16 ❑ Carport 25 ❑ Public utility 26 C] School.library.other eduratrnu 7 ❑ Fourgat,on onty 17OM,-Sox [:] M 27 ❑ Stares.merrarttde B.OWNERSHIP 28 ❑ Tanks.rowers BZ P'4 to(lndwiduaL COfOMtCM1 OrOhl irmdutw etc.) ❑ Ottkr•six!cav 9 ❑ Pudic(Federal.Slate.a local govermrxn C.COST -(Omit rents) Nontasweritral.Desaroe n detaa Proposed used buildings e.g.food oropeSSM PianL macnne an=laurtory building at no ital awnerrtary scinooi.secondary sacro LVoage. 10. Cost of imonTement S r Paracrual sarool.paring garage for dowwrrera stare.renal otf ce buidng,odics bu idNW at ndreuul olariL It use of esmarg bu"M o being a+arrgel enter QmPosw use. To be installed but not included in Ina above cost ()O cla e s a. Electrical b. Plumbing C Healing.Or conditioning d. OU1er(elevator.etel 11. TOTAL COST OF IMPROVEMENT S ,5,M0•®0 111. SELECTED CHARACTERISTICS OF 81 ING - For new buildings and additions, complete Parts E L;demolition, complete only Parts J& M. all others skip to IV E. PRINCIPAL TYPE OF FRAME F. PRINCIPAL TYPE OF HEATING FUEL G. TYPE OF SEWAGE DISPOSAL I. TYPE OF MECHANICAL 30 ® Masonry(.au besting) 35 ® Gas 40 ® Public or timate canwanY will there ce Orrrmar art 31 wood fRrne 36 ® ON 41 ❑ Pnvate(S"tC tam-efG) cona^ioning7 r 32 ❑ Structural steer 37 ❑ Elecprey m ® Yes a5 L_ lio 33 �- Rentorced concrete 38 ❑ COW H. TYPEOF WATER SUPPIY Will tnere oy en ew nn0r? 24 I! Other•Scecrry 39 CDOther-$Decay 42 E Public or orR2le conrmny 46 Cl Yes 47 �,NO J.DaENS1011S - of ea NumberlUSIm' M. DEMOLITION OF STRUCTURES: a9. Taal acture d--- . aea Hour area ad coag oared an enenor . dna s Has Approval from Historical Commission been received 50. Taal Land area sq,tc /V/-+4-' for any structure over fifty(50)years? Yes_ No_ Dig Safe Number K NUMBER OF OFFSTAEET PARKING SPACES Sl. Ercib"d Pest Control: 52 °°`doom HAVE 'T;1:71: 5ELOWNG UTILITIES BEEN DISCONNECTED? L RESIDENTIAL 6UILDINGS ONIY YQS NO ss Erwueed Water. Electric: 54. Number dl Ful Gas: badu.-sag Sewer. DOCUMENTATION FOR THE ABOVE MUST BE ATTACHED BEFORE A PERMIT CAN BE.ISSUED. IV. COMPLETE THE FOLLOWING: Historic District-7, Yes—X Nom (If yes.please enclose documentation from Hist Com.) Conservation Area? Yes_ Nom (If yes,please enclose Order of Conditions) Has Fre Prevention approved and stamped plans or applications? Yeses No_. Is property located in the S-RA district? Yes_ Nom Comply with Zoning? Yeses No_ (If no. enclose Board of Appeal decision) Is lot grandfathered? Yes-44No_ (If yes,submit dobumentationlf no,submit Board of Appeal decision) If new construction,has the proper Routing Slip been enclosed? Yeses No_ Is Architectural Access Board approval required? Yes, Nom (If yes,submit documentation) Massachusetts State Contractor License a C6 2 //g Salem License /S07 Home Improvement Contractor x l//A- Homeowners Exempt form (if applicable) Yes_ No_ CONSTRUCTION TO BE COMMENCED WITHIN SIX (6) MONTHS OF ISSUANCE OF BUILDING PERMIT CONSTRUCTION IS TO BE COMPLETED BY: If an extension is necessary, please subm¢ in writing to the Inspector of Buildines. V. IDENTIFICATION • To be completed by alt applicants Name ng amie3s•Number.suseL CXK and tAYs ZIP code Tel Nn l w No 'SkOtft, AA;5Dii-A g! I+�G�tGAfJ A-V� sr�l o($ 7d 7Yfizrs Lessee eEtJ-{-rrL � >oa i co+co 31 ,tIl Av✓r 1)44cL) itr a a/B Z6 �SoB-9r z ed�dere %S i9Z C3� Licsn+e No. Arcratedi uYW IX I hereby certify that the proposed work is authored b as his authorized y the owner of record and that I have peen aumorizea by the owner to make this appiicaaon anent anD we agree to conform to all aDolicable laws of this iunsdicnon, .�.i0na14re Of dD011Caniy V'� �� Address„ DO NOT WRITE BELOW THIS LINE p LIDATION g Jt� C FOR DEPARTMENT USE ONLY Permnumber �t,3 L) _Ci S BuildingS /)5� q UseGmuc Permit issued 19 7 Fire Grating Building 3 3D QD Permit Fee S Lira Loading Certificate of Occupancy $ OC 0a"0J wad Approved by: Drain Tile $ Plan Review Fee T(11E J / v NOTES AND Data • (For department use) PERMIT TO BE MAILED TO: CD/1 4"rGC,+0 r DATE MAILED: 8 I I g5 Construction to be started by Completed by. EXHIBR CHU of "ittlem, Massa djusetts `a� Ottra O{ �'1}t�I¢ttl APR 3 Z 58 h! "96 CITY 0! . . . . .. . a;S DECISION ON THE PETITION OF DONALD L. HODGEMAN et al REQUESTING THE BOARD TO RESCIND THE DECISION FOR THE PROPERTY LOCATED AT 376 ESSEX STREET (R-2) A hearing on this petition was held January 17, 1996 and continued again to February 21, 1996 and heard again March 20, 1996 with the following Board Members present: Stephen Touchette, Chairman; Gary Barrett, Nina Cohen, Albert Hill and Joseph Ywuc. Notice of the hearing was sent to abutters and others and notices of the hearing were properly published in the Salem Evening News in accordance with Massachusetts General Laws Chapter 40A. Petitioners are requesting an Administrative Ruling in accordance with Section IX of the Zoning Ordinance and MGL 40A.. Section 7 relative to the use of the premises and Enforcement of Sections V-B (2 ) and VIII-E (6) of the Zoning Ordinance with respect to said premises. More specifically, the petitioner, owner of the property, is requesting the Board rescind the decision of the Salem Zoning Enforcement Officer to issue a building permit for the property located at 376 Essex Street (R-2) . After hearing the evidence the Board of Appeal makes the following findings of fact : 1 . Both the petitioner and the owner of the premises were represented by counsel, each of whom made oral presentations and submitted written briefs . 2. The property at 376 Essex Street is located in an R-2 District. 3. From approximately 1941 through 1981, the property was owned and used by Dr. John Cunney as a private residence and professional office for his medical practice. In 1981, the property was purchased by Dr. Reynes and used as a residence and medical office until 1988, when it was sold to the Kirsches . They used it as a residence and professional office until it was sold to the present owner, Charter Trust. 4 . The use of the property as a physician's office within a private residence was an allowed use pursuant to the 1955 Zoning Ordinances and it became a non-conforming use in 1965 when the Salem Zoning Ordinance was changed. 5. The non-conforming use as a physician's office in a private residence has been continuously maintained to the present time. 6 . Dr. Shafer stated that she will use the premises as a medical office and a residence. She will see patients in conjunction with one (1) associate three (3 ) days a week. Dr. Shafer stated that she will employ other administrative and medical staff. 7, Dr Shafer offered to register to vote in Salem, register her motor vehicle in Salem and use her Essex Street address for her professional licenses . DECISION OF THE PETITION OF DONALD L. HODGEMAN FOR THE PROPERTY . LOCATED AT 376 ESSEX STREET (R-2) page two 8. The physical changes to the building involved painting the interior, replacing carpets, partitioning the "family" room into examination rooms, adding a handicap accessible bathroom and a handicap ramp. 9 . The petitioners presented testimony that the floor plan submitted with the application for the building permit showed an increase in floor space devoted to the medical practice over that used by prior owners . The petitioners also presented testimony that Dr. Cunney did have any associated in practice with him and that he had one (1) employee. 10 . A number of documents were received by the Board and made part of the public record. They include the following: 1 . Briefs submitted by both attorney' s . 2 . Letters, both in favor and opposition. 3 . Signed petition from both in favor and opposition. Therefore, based on the above findings of fact and on evidence presented, the Zoning Board of Appeals voted three (3) in favor and two (2) opposed. Failing to garner the necessary four (4 ) votes, the Petition was denied. Petition Denied March 20, 1996 Stephen Touchette, Chairman Board of Appeal A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed within 20 days after the date of filing of this decision in the office of the City Clerk . Pursuant to Massachusetts General Laws Chapter 40A, Section 11 , the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certification of the City Clerk that 20 days have elapsed and no appeal has been filed, or that, if such appeal has been filed, that it has been dismissed or denied is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or is recorded and noted on the owner's Certificate of Title. Board of Appeal ATTEST SALEM, MASS. LAND COURT qq�� ��yy FILED COMMONWEALTH OF MASSACHUSETTS ESSEA'I^SS3I PM 1: 26 DEPARTMENT OF THE LAND COURT CIVIL NO. 227758 * * * * * * * * * * * * * * * * * * * * * JOHN F. DAVIS, JR. , ALYCE M. DAVIS, STEVEN K. GREGORY, MARY KATHRYN BRATUN, PALMER SWECKER and ELMA SWECKER, Plaintiffs * * STEPHEN TOUCHETTE, GARY BARRETT, NINA COHEN, ALBERT HILL and JOSEPH YWUC, as they are Members of the Zoning Board of Appeal of the City of Salem * and * LEO E. TREMBLAY, as he is the Inspector of Buildings and Zoning Enforcement Officer of the City of Salem * and * LINDA W. NICHOLS, TRUSTEE, as she is the Sole Trustee of CHARTER TRUST, Defendants * * * * * * * * * * * * * * * * * * * * * ANSWER OF LINDA W. NICHOLS, TRUSTEE Defendant Linda W. Nichols, Trustee, as she is the sole Trustee of Charter Trust (hereinafter "Charter") , hereby answers the Complaint of the Plaintiffs as follows: 1. Charter admits that this is an appeal from a decision of the Zoning Board of Appeal of the City of Salem, Massachusetts, (hereinafter the "Board") and Charter further admits that it holds title to the owner of the building at 376 Essex SERAFINI,SERAFINI Street, Salem, Massachusetts (hereinafter "Building") . AND DARLING Charter denies the remaining allegations contained . in - ATFORME�AT LAW Paragraph 1 of the Complaint. 63 FEDERAL STR ET SALEM,MASS,01970 1 ISOBI JM-0212 16171581-2793 F 2. Charter is without information sufficient to form a belief as to the truth of the allegations contained in paragraph 2 of the Complaint. 3. Charter is without information sufficient to form a belief as to the truth of the allegations contained in Paragraph 3 of the Complaint. 4. Charter is without information sufficient to form a belief as to the truth of the allegations contained in Paragraph 4 of the Complaint. 5. Charter is without information sufficient to form a belief as to the truth of the allegations contained in Paragraph 5 of the Complaint. 6. Charter is without information sufficient to form a belief as to the truth of the allegations contained in Paragraph 6 of the Complaint. 7. Charter is without information sufficient to form a belief as to the truth of the allegations contained in Paragraph 7 of the Complaint. 8. Charter admits the allegations contained in Paragraph 8 of the Complaint. 9. Charter admits the allegations contained in Paragraph 9 of the Complaint. 10. Charter admits the allegations contained in Paragraph 10 of the Complaint. 11. Charter admits the allegations contained in Paragraph 11 of the Complaint. 12. Charter admits the allegations contained in Paragraph 12 of the Complaint. 13. Charter admits the allegations contained in Paragraph 13 of the Complaint. 14. Charter admits the allegations contained in Paragraph 14 of the Complaint. 15. The allegation contained in Paragraph 15 of the Complaint states a conclusion of law to which no response is required. 16. Charter admits that a copy of the Building Permit SERAFINI,SERAFINI application is attached to the Complaint as Exhibit .1 and AND DARLING that a Building Permit was issued on or about August 15, ATTORNEYS AT LAW 1995. 6 FEDERAL STREET SALEM.MASS.O1.1. 2 ISOBI7M .2 1.111 SO 7A3 17. Charter denies the allegations contained in Paragraph 17 of the Complaint, but admits that the building is presently located in an R-2 District pursuant to the current City of Salem Zoning Ordinance and that the R-2 District allows two- family residential use. 18. Charter denies the allegations contained in Paragraph 18 of the Complaint. 19. Charter denies the allegations contained in Paragraph 19 of the Complaint. 20. Charter admits that an enforcement request was submitted to the Building Inspector and that an appeal of the Building Inspector's decision was filed with the Board requesting that the Building Permit for the building be rescinded. Further answering, Charter states that the remaining allegations contained in Paragraph 20 state conclusions of law to which no response is required, but to the extent an answer is required, Charter denies them. 21. Charter admits the first sentence of the allegation contained in Paragraph 21. As to the second sentence, Charter admits that a copy of the Decision is attached to the Complaint as Exhibit 2; however, such Exhibit does not contain a later amendment to the Decision which was prepared by the Board and filed with the Salem City Clerk on May 24, 1996, a certified copy of which is attached as Exhibit A. 22. Charter denies the allegations contained in Paragraph 22 of the Complaint. 23. Charter denies the allegations contained in the first line of Paragraph 23; Charter denies subparagraph (a) of Paragraph 23; Subparagraph (b) of Paragraph 23 states conclusion of law to which no response is required; and Charter admits the allegations contained in subparagraph (c) of Paragraph 23 but states that no Special Permit was necessary to allow the proposed use. FIRST AFFIRMATIVE DEFENSE The Complaint fails to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE SERAFINI,SERAFINI The Plaintiffs lack legal standing to bring the AND DARLING Complaint. ATTORNEVS.T uw 63 EEDERALSTREET .ALE.M s DIR1. 3 150617a-0212 I611I 5BI-27.3 WHEREFORE, Charter requests that this Court: 1. Hear the evidence and determine the facts; 2. Determine that the Decision of the Board of Appeal be upheld as being within the Board's authority; 3. Order that a Certificate of Occupancy issue for the use as proposed by Charter; and 4. Grant such further relief as justice and equity require, including costs and reasonable attorneys' fees. Respectfully submitted, LINDA W. NICHOLS, Sole Trustee of Charter Trust By her Attorneys, Dated: R. SERAFINI, SR. VO #451840 OSEPH C. CORRENTI BBO #551666 Serafini, Serafini and Darling 63 Federal Street Salem, Massachusetts 01970 508-744-0212 1/charter.ana SERAFINI.SERAFINI AND DARLING ATTORNEYS AT LAW 6 FEDERALSTREET S LEM.MASS.01.1. 4 I5051>m L212 I61>I SBI-2>53 ( 11 a:�ulnll e (Qitu of '�$ttfem, Anssadjusetts Pourb of Appeal z — - N N AMENDMENT TO THE DECISION OF 376 ESSEX STREET This amendment is in regards to paragraph three (3 ) of the Decision of Donald L. Hodgeman. Paragraph should read: More specifically, the petitioner is requesting the Board rescind the decision of the Salem Zoning Enforcement Officer to issue a building permit and to prohibit issuance of a Certificate of Occupancy for the structure at 376 Essex Street, except for use of a portion of the structure as a professional office or home occupation by the individual residential owner to the extent such use was established prior to enactment of the Salem Zoning Ordinance (R-2 ) . Sally Murtagh Clerk, Board of Appeal A TRUE COPY ATTEST CITY CLERK SALEM, MASS. of 'iWem, 7EuSsadjusetts �QottrD of tAupeal AMENDMENT TO THE DECISION OF-ZZ6 ESSEX STREET This amendment is in regards to paragraph three ( 3 ) of t-he Decision of Donald L. Hodgeman. Paragraph should read: More specifically, the petitioner is requesting the Board rescind the decision of the Salem Zoning Enforcement Officer to issue a building permit and to prohibit issuance of a Certificate of Occupancy for the structure at 376 Essex Street , except for use of a portion of the structure as a professional office or home occupation by the individual residential owner to the extent such use was established prior to enactment of the Salem Zoning Ordinance (R-2 ) . Sally C. Murtagh Clerk, Board of Appeal `;.ifu of �2i1£Tii, 7711I85cICIilIB£tf3 Botts of _�u#renl DECISION ON THE PET?TION OF DONALD L. HODGEMAN et a1 REOUESTING THE BOARD TO RESCIND THE DECISION FOR THE PROPERTY LOCATED .-: 3?6 ESSEX STREET (R-2) A hearing on this petition was held January 17, !996 and continued again to February 21, 1996 and heard again March 20, 1996 with the following Board Members present: Stephen Touchette, Chairman; Gary Barrett, Nina Cohen, Albert Hill and Joseph Ywuc. Notice of the hearing was sent to abutters and others and notices of the hearing were properly published in the Salem Evening News in accordance with Massachusetts General Laws Chapter 40A. Petitioners are requesting an Administrative Ruling in accordance with Section IX of the Zoning Ordinance and MGL 40A. Section 7 relative to the use of the premises and Enforcement of Sections V-B ( 2) and VIII-E ( 6 ) of the Zoning Ordinance with respect to said premises . More specifically, the cetitioner, owner of the property, is requesting the Board rescind the decision of the Salem Zoning Enforcement Officer to issue a building permit for the property located at 376 Essex Street (R-2 ) . After hearing the evidence the Board of Appeal makes the following findings of fact: 1 . Both the petitioner and the owner of the premises were represented by counsel, each of whom made oral presentations and submitted written briefs . The property at .376 Essex Street is located in an R-2 District. 3. From approximately 1941 through 1981, the property was owned and used by Dr. John Cunney as a private residence and professional office for his medical practice. In 1981, the property was purchased by Dr. Reynes and used as a residence and medical office until 1988, when it was sold to the Kirsches. They used it as a residence and professional office until it was sold to the present owner, Charter Trust. 4. The use of the property as a physician's office within a private residence was an allowed use pursuant to the 1955 Zoning Ordinances and it became a non-conforming use in 1965 when the Salem Zoning Ordinance was changed. 5. The non-conforming use as a physician's office in a private residence has been continuously maintained to the present time. 6. Dr. Shafer stated that she will use the premises as a medical office and a residence. She will see patients in conjunction with one ( 1) associate three (3) days a week. Dr. Shafer stated that she will employ other administrative and medical staff. 7. Dr Shafer offered to register to vote in Salem, register her motor vehicle in Salem and use her Essex Street address for her professional licenses. DECISION OF THE PETITION OF DONALD L. HODGEMAN FOR THE PROPERTY LOCATED AT 376 ESSEX STREET (R-2) page two S. The physical changes to the building involved painting the interior, replacing carpets, partitioning the "family" room into examination rooms, adding a handicap accessible bathroom and a handicap ramp. 9. The petitioners presented testimony that the floor plan submitted with the application for the building permit showed an increase in floor space devoted to the medical practice over that used by prior owners. The petitioners also presented testimony that Dr. Cunney did not have any associates in practice with him and that he had one (1) employee. 10. A number of documents were received by the Board and made part of the public record. They include the following: 1. Briefs submitted by both attorney's. 2. Letters, both in favor and opposition. 3. Signed petition from both in favor and opposition. Therefore, based on the above findings of fact and on evidence presented, the Zoning Board of Appeals voted three (3) in favor and two (2) opposed. Failing to garner the necessary four (4) votes, the Petition was denied. Petition Denied March 20, 1996 Stephen Touchette, Chairman Board of Appeal A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed within 20 days after the date of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certification of the City Clerk that 20 days have elapsed and no appeal has been filed, or that, if such appeal has been filed, that it has been dismissed or denied is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or is recorded and noted on the owner's Certificate of Title. Board of Appeal 1, Salem Ihstor cal Commission ONE SALEM GREEN, SALEM,MASSACHUSETTS 01970 (508)745-9595 EXT.311 CERTIFICATE OF APPROPRIATENESS It is hereby certified that the Salem Historical Commission has determined that the proposed will: ❑ Construction ❑ Moving ❑ Reconstruction ❑ Alteration ❑ Demolition K Painting ❑ Signage ❑ Other work as described below will be appropriate to the preservation of said Historic District, as per the requirements set forth in the Historic District's Act(M.G.L. Ch. 40C) and the Salem Historic Districts Ordinance. District: McIntire Address of Property: r 376 Essex St.i Name of Record Owner: Linda Nichols. Trustee of Charter Trust Description of Work Proposed: Paint colors for house and carriage house: Body- PH-24 Trim (including columns) - PE-5 Shutters PH-113 The Commission would like to encourage the property owner to consider submitting an application to re- install the front ballastrade and roof ballastrade previously existing. Dated: 8/7/95 SALEM HISTORICAL COMMISSION By: / The homeowner has the option not to commence the work (unless it relates to resolving an outstanding violation). All work commenced must be completed within one year from this date unless otherwise indicated. THIS IS NOT A BUILDING PERMIT. Please be sure to obtain the appropriate permits from the Inspector of Buildings (or any other necessary permits or approvals) prior to commencing work. EXHIBIT A 1. Donald L. Hodgman 373 Essex Street, Salem, Massachsuetts 2. Martha Field Hodgman 373 Essex Street, Salem, Massachsuetts 3. John F. Davis, Jr. 374 Essex Street, Salem, Massachusetts 4. Alyce M. Davis 374 Essex Street, Salem, Massachusetts 5. John Casey 17 Flint Street, Salem, Massachusetts 6. Bruce Goddard 17 Flint Street, Salem, Massachusetts 7. Steven K. Gregory 141 Federal Street, Salem, MA 8. Mary Kathryn Bratun 141 Federal Street, Salem, MA 9. William H. Guenther 365 Essex Street, Salem, MA 10. Diedre Guenther 365 Essex Street, Salem, MA 11. Annie Harris 28 Chestnut Street, Salem, MA 12. Timothy Clarke 361 Essex Street, Salem, Massachusetts 13. Alice Clarke 361 Essex Street, Salem, Massachusetts STRAUB & MEYERS Attorneys at Law 70 Washington Street Suite 318 Neila J. Straub, Esq. Salem, Massachusetts 01970-3520 (508)745-7710 Sharon D. Meyers, Esq. (617)581-8005 John D. Keenan, Esq. Lyons, Es (508)740-6766 Mark B. L y q., ofCounse! Fax (508)745-8110 James L. Rogal, Esq., of Counsel October 16, 1995 HAND DELIVERED Leo Trembley Building Inspector City of Salem One Salem Green Salem, MA 01970 Re: 376 Essex Street, Salem, Massachusetts Dear Mr. Trembley: Pursuant to the Salem Zoning Ordinances, Article IX, §9-2 (a), let this letter serve as written notice that the members of the Essex Street Neighborhood Homeowners Association, consisting of the people listed in Exhibit A, attached hereto, are filing a written complaint concerning the interior renovation work presently being undertaken at 376 Essex Street, Salem, Massachusetts. The abutters and other neighbors believe that there is violation of the Salem Zoning Ordinances, as it appears that the use of the property is about to be dramatically changed, that the parking is insufficient for the planned changed, and that there appears to be an alternation to the exterior of the house which has not been approved by the Salem Historic Commission. The abutters and other neighbors have reason to believe that Dr. Beverly Shafer, an associate of Dr. Shafer's and a surgeon intend to occupy the premises of 376 Essex Street providing medical services in a clinic setting. There is no intent by Dr. Shafer, or any other physician to occupy the dwelling as principle residence, changing the essential character of the property without a variance being obtained and a proper public hearing having been held. Until such time as the use of the property is established, the Essex Street Neighborhood Homeowners Association requests that you issue a cease and desist order. Should you wish to discuss this with me further, I may be reached at the above telephone number. Very T�r�uly�Yogrs, Sharon D. Meyers, Esqtitrell/y � EXHIBIT A 1. Donald L. Hodgman 373 Essex Street, Salem, Massachsuetts 2. Martha Field Hodgman 373 Essex Street, Salem, Massachsuetts 3. John F. Davis, Jr. 374 Essex Street, Salem, Massachusetts 4. Alyce M. Davis 374 Essex Street, Salem, Massachusetts 5. John Casey 17 Flint Street, Salem, Massachusetts 6. Bruce Goddard 17 Flint Street, Salem, Massachusetts 7. Steven K. Gregory 141 Federal Street, Salem, MA 8. Mary Kathryn Bratun 141 Federal Street, Salem, MA 9. William H. Guenther 365 Essex Street, Salem, MA 10. Diedre Guenther 365 Essex Street, Salem, MA 11. Annie Harris 28 Chestnut Street, Salem, MA 12. Timothy Clarke 361 Essex Street, Salem, Massachusetts 13. Alice Clarke 361 Essex Street, Salem, Massachusetts ADMINISTRATION AND ENFORCEMENT SECTION 119.0 CERTIFICATE OF USE AND'OCCUPANCY 119.1 New buildings and structures: A building or structure hereafter shall not be used or occupied in whole or in part until the certificate of use and occupancy shall have been issued by the building commissioner or inspector of buildings or, when applicable, the state inspector. The certificate shall not be issued until all the work has been completed in accordance with the provisions of the approved permits and of the applicable codes for which a permit is required, except as provided in Section 119.4. Prior to the issuance of the certificate of use and occupancy, the building commissioner or inspector of buildings shall cause a written request to be transmitted to the head of the fire department concerning the issuance of the certificate with regard to items in Section 1000.1.1 of this code. Within three (3) working days of receipt of the request the head of the fire department shall indicate concurrence with the issuance of said certificate or non-concurrence with specific reasons therefor which relate to the items listed in said Section 1000.1.1. Should no response to the inquiry be received by the building commissioner or inspector of buildings within five (5) working days, the building commissioner or inspector of buildings shall deem concurrence by the head of the fire department. 119.2 Buildings or structures hereafter altered: A building or structure, in whole or in part, altered to change from one use group to another; to a different use within the same use group; the fire grading; the maximum live load capacity; the occupancy load capacity; or a building or structure hereafter altered for which a certificate of use and occupancy has not been heretofore issued, shall not be occupied or used until the certificate shall have been issued certifying that the work has been completed in accordance with the provisions of the approved permits and of the applicable codes for which a permit is required. Any use or occupancy,which was not discontinued during the work of alteration, shall be discontinued within thirty (30) days after the completion of the alteration unless the required certificate. is issued. 119.3-Existing buildings or structures: If a certificate of use and occupancy has r not been issued, upon written request from the owner of an existing building or.. structure, a certificate of use and occupancy shall be issued, provided there are no violations of law or orders of the building official pending, and it is established after- inspection and investigation that the alleged use of the building or structure has ,' 'heretofore existed. ;Nothing in this code shall require the removal, alteration or ibandonment of,or prevent the continuance of the use and occupancy of a lawfully existing building or structure, unless such use is deemed to endanger public safety and welfare. 780 CMR - Fifth Edition 1-21 SERAFINI, SERAFINI AND DARLING ATTORNEYS AT LAW 63 FEDERAL STREET SALEM, MASSACHUSETTS01970 JOHN R. SERAFINI. SR. TELEPHONE JOHN R. SERAFINI,JR, 506.744.0212 JOHN E. DARLING 617581-2743 ELLEN M. WINKLER TELECOPIER JOSEPH C. CORRENTI June 3, 1996 506-741-4663 CERTIFIED MAIL RETURN RECEIPT REQUESTED John F. Davis, Jr. Alyce Davis 374 Essex Street 374 Essex Street Salem, MA 01970 Salem, MA 01970 Steven K. Gregory Mary Kathryn Bratun 141 Federal Street 141 Federal Street Salem, MA 01970 Salem, MA 01970 Palmer Swecker Elma Swecker 380 Essex Street 380 Essex Street Salem, MA 01970 Salem, MA 01970 Gary Barrett Stephen Touchette 7 Patton Road 45 Gallows Hill Road Salem, MA 01970 Salem, MA 01970 Albert Hill Nina Cohen 4 Larkin Lane 22 Chestnut Street Salem, MA 01970 Salem, MA 01970 Joseph Ywuc Leo E. Tremblay 16 Pleasant Street Building Inspector and Salem, MA 01970 Zoning Enforcement Officer One Salem Green Salem, MA 01970 RE: John F. Davis, Jr. et al vs. Stephen Touchette et al Land Court Civil Action No. 227758 Gentlemen and Mesdames: Enclosed to each of you is a copy of the Answer of Linda W. Nichols, Trustee, which was filed with the Land Court Department of the Trial Court on May 31, 1996. Very truly yours, JCC/ln dJSE kC ORRENTI enclosure cc: George W. Atkins III, Esq. , enclosure cc: Robert A. Ledoux, Esq. , enclosure .�S'h r Rty�+: Rec.:P.B: b/22/65 1. R-C and R-I Districts: Residential Conservation and One-Family Residential Profession offices and other home occupations involving the use of a room or rooms in a dwelling to carry on activities in which goods, wares, or merchandise are not commercially created or handled, provided that any such home occupation: (� shall be operated entirely within a dwelling unit with no display visible from the street; (2) shall be operated only by the residents of the dwelling unit, with not more than one (1) regular employee not residing in the dwelling unit; (�,T)) shall utilize not more than twenty-five (25) per cent of the gross floor area of the dwelling unit; and (4� shall display not more than one non-electric announce- ment sign of an area not greater than 1k square feet and attached against the building and not protruding therefrom. b. Marina C. Waterfront Boat Yards d. Waterfront Yacht Clubs_._ e. Outdoor Swimming Pools, provided however that they conform to all the requirements of the Health Department and the Electric Department. In addition all pools shall be surrounded on all sides with a permanent wale of fence at least four (4) feet high. The fence shall have only one opening three (3) feet maximum in width. The gate shall have a locking device l r 21 r r Rec. P.B. I/22/65 b. Automobile, trailer, and boat sales and service. C. Plumbing, carpentry, and sheet metal shops. d. Printing establishments. e. Sales and storage of building supplies. f. Warehousing. g. Wholesale merchandise brokers and wholesale storage. h. Service establishments exceeding the requirements for such businesses in B-1 Districts, such as major laundry, dry cleaning, and baking establishments. i. Churches and similar places of worship, public and private nursery, elementary, and secondary schools, institutions of higher education. j, off-street parking and loading facilities and other accessory uses and buildings, provided that such uses are clearly inci- dental to the principal use. 8. I-Districts: Industrial a. All uses permitted in B-4 Districts, subject to all the provisions specified for such uses. B. (Spe`cial_Permit_Uses) (See Section IX-D for Administration) Provided, however, that if permission of the Board of Appeals is obtained in accordance with procedure and conditions set forth in Section IX-D hereof, buildings and structures may be constructed, altered, enlarged, reconstructed and used , and land may be used for one or more of the following purposes: L Vb ♦ an' V Y A'. � 5 - $1075 Tity of igdent - In the yearCone tho' und-n a hundred and twenty five. Att (Orbinxnrr relating to zoning. Be it ordained by the City Council of the City of Salem, as follows: *rfttt Establishment of Districts. For the purpose of this ordinance, the City of Salem is hereby divided into seven classes of districts to be known as 1. Single residence districts 2. General residence districts : . Apartment house districts 4. Semi-residence districts 5. Business districts 6. Industrial districts 7. Unrestricted districts as shown on the map which accompanies this ordinance, entitled: "Zoning Map," filed in the office of the City Engineer, which map, together with all the _ boundary lines and designations thereon, is hereby made a part of this ordinance. Section 2. Single Residence Districts. In the single residence districts, I no new building or structure, or part thereof, shall be constructed or used I and no existing building or structure or part thereof, shall be altered, enlarged, reconstructed or used for j I A. Any industry, trade, manufacturing, or commercial purpose; or for B. Any purpose except one or more of the following specified uses: 1. Single family detached house, unless otherwise permitted by the Board of Appeal under the provisions of section 14; _! -2- 4. Public school or other public use; 5. Private school, college, museum, or other use of an educational character; 6. Club, except a club the chief activity of which is a service customarily carried on as a business; 7. Public or semi-public institution of a philanthropic, charitable, or religious character, but not a correctional institution; (8,'Hos'pitnl, _sanitarium, or other mediical_instit'ution; 9. Farm, Market garden, nursery, or greenhouse, including the sale of natural products raised on the premises, but not including any use or the extension of any existing use which would be injurious, obnoxious, or offensive to the neighborhood; 10. Such accessory uses_as_are_customary in connection with the ,fo er going uses and_are_incidental thereto, including a private garage, group garage, or private stable Section 3. General Residence Districts. In the general residence districts, no new building or structure, or part thereof shall be constructed or used and no existing building or structure,or part thereof, shall be altered, enlarged, reconstructed or used for A. Any industry, trade, manufacturing, or commercial purpose; or for B. Any purpose except one or more of the following specified uses: 1. Any purpose or accessory use authorized in the single residence district; 2. Double or semi-detached house, two family house, or group house consisting of three or more contiguous single family houses i separated by party walls; 3. Such accessory uses as are customary in connection with the foregoing uses and are incidental thereto, including a private garage, group garage, or private stable. F Section 4:g apartment Aouse`Distric� Ia the apartment house districts, no new building or structure, or part thereof, shall be con#tructed or used and no existing building or structure, or part thereof, shell be altered, enlarged reconstructed or used for A. Any industry, trade, manufacturing, or commercial purpose; or for B. Any purpose except one or more of the following specified uses: 6 ose o' r acceseor use authorized_in the single orr genera 1. lAny pure Y residence-d-ietricts_; 2. Residence for three or .more families, aparfpent house, apartment hotel, or hotel; 3. Such accessory uses as are customary in 00pnection with the foregoing uses and are incidental thereto, including a private garage, group garage, or private stable. Section 5. Semi-Residence Districts. A. In the semi residence districts, new buildings And structures may be constructed and used and existing building# And structures may be altered, enlarged, reconstructed, and used for Any purpose or accessory use authorized in the single residendfo general residence, or apartment house districts; but for no other purpose or use, except that B. The first floor, basement, and cellar of any n#N or existing building or structure may be used for one or more of the purposes and accessory uses authorized in the business districts, ineipding a private garage or private stable, group garage, business garaga or business stable, gasoline filling station, service station, but got a public garage L or public stable, or a motor vehicle repair rNQP• Section 6. Business Districts. In the business districtd, no new building or e d and no existing building structure, or part thereof, shall be constructed or use In the. year one thousand nineehuridied and"forty-four; , AN ORDINANCEto amend an Ordinance relating to Zoning. BE Ir ORDAINED by the City Council of the City of Salem, as follows: Section. 1. The Zoning Ordinance is hereby amended by striking out Section 1, and substituting therefor the fol- ]owing: "Section 1. ESTABLISHMENT OF DISTRICTS.For the purpose of this ordinance, the City of Salem is hereby divided into eight classes of districts,to be known as: 1. Single residence districts,. 2. General residence districts, ' S. Residence D districts, 4. 'Apartment house districts, 5. Semi-residence districts, . 6. .Business districts;_ _ 7. Industrial districts, — -- ' 8. Unrestricted districts,' as shown on the Zoning Map, dated March 28, 1944, and filed in the Office of the City Clerk." Section 2. The Zoning Ordinance is hereby further- amended urtheramended by striking out in Section 2 the words; "2. Board- ing orLodgingHouse." Section 3- The Zoning Ordinance is hereby further amended by inserting after Section 3 the following new section: "Section 3A. RESIDENCE D DISTRICTS. In the resi- dence D districts no new building or structure, or part there- of, shall be constructed or used and no existing building or structure, or part thereof, shall be altered, enlarged, recon- structed or used for A. Any industry, trade, manufacturing or commercial . purpose or for B. Any purpose except one or more of the following specified uses: 1. Any purpose or accessory use authorized in the I general residence districts; 2. Alteration for more than two families of a dwelling house existing on January 1, 1944, and containing more than 1000 sq. feet of floor space exclusive of halls and stairs, provided the building is not en- larged or the exterior walls substantially altered. The Board of Appeal shall have full and complete power to determine what shall constitute "substan- tial alteration," and are also empowered to prevent any alteration that is detrimental to the neighbor- hood. Se�i_Y..)The Zoning Ordinance is Hereby further amended byinserting_in Section 4, paragraph B. 2, after words "apartment hotel," th"e_ wordsi']odging h�ouse,� so that said paragraph will read as follows: Residence `or three or more families, apartment house, apartment hotel, lodginThouse`,,or hotel;" CITY OF SALEM - MASSACHUSETTS WILLIAM J. LUNDREGAN Legal Department JOHN D. KEENAN City Solicitor Assistant City Solicitor 81 Washington Street 93 Washington Street 15 Church Street Tel:978.741-3888 Salem, Massachusetts 01970 Tel:978-744-8500 Fax:978-741-8110 Fax:978-744-0111 July 20, 1998 Kevin Goggin Acting Building Inspector City of Salem One Salem Green Salem, MA 01970 RE : 376 Essex Street, Salem, MA Dear Mr. Goggin: As you know, the Massachusetts Appeals Court has rendered a decision in the above matter. I enclose a copy of the decision for your files . I would respectfully request that no occupancy certificate issue to the owner of the unit until such time as I have had an opportunity to review and discuss the terms of the occupancy permit with you and the Board of Appeals . If you have any questions with reference to this matter, please do not hesitate to call me . Very ruly your , WILLIAM LUNDREGAN CITY S ICITOR WJL/amc CC : John D. Keenan, Esq. t Tifu of ttlem, ttssttcliuse##s Q Psarb of *p*nlll 51 fh '38 CI C'lCi,K�S 01 f. CE55 SECOND AMENDMENT TO THE DECISION ON THE PETITION OF DONALD L. HODGEMAN ET.AL . FOR THE PROPERTY LOCATED AT 376 ESSEX STREET The prior decision of the Board of Appeal dated March 20 , 1996 , filed under the City Clerk ' s Office on April 3 , 1998 , as amended by an undated Amendment filed with the City Clerk ' s Office on May 24 , 1996, is hereby further amended in compliance with the Judgment of the Land Court dated June 1 , 1998 in David et. al . v . Touchette et . al . , Miscellaneous Case No. 227758 , (hereinafter "Judgment" ) a copy of which is attached hereto and incorporated by reference , as follows : 1 . The decision of the Building Inspector/Salem Zoning Enforcement Officer to issue a building permit with regard to the property at 376 Essex Street is reversed to the extent necessary to comply with the Judgment . 2 . The Building Inspector/Salem Zoning Enforcement Officer is instructed that any occupancy permit for the property at 376 Essex Street must be issued in accordance with the Judgment and must be made available for review by the City Solicitor to ensure that the Certificate of Occupancy is so conditioned. Nina Cohen, Chairman Board of Appeal COMMONWEALTH OF MASSACHUSETTS r LAND COURT SEP 13 11 19 r se DEPARTMENT OF THE TRIAL COURT CITY CLLRK S OFF CE55 Miscellaneous Case No. 227758 JOHN F. DAVIS, Jr.,ALYCE M.DAVIS, STEVEN K. GREGORY, MARY KATHRYN BRATUN, PALMER SWECKER,and ELMA SWECKER, Plaintiffs VS. STEPHEN TOUCHETTE, GARY BARRETT, NINA COHEN,ALBERT HILL,and JOSEPH YWUC, AS THEY ARE MEMBERS OF THE ZONING BOARD , OF APPEALS OF THE CITY OF SALEM, LEO E.TREMBLAY,AS HE IS THE INSPECTOR OF BUILDINGS AND ZONING ENFORCEMENT OFFICER OF THE CITY OF SALEM, and LINDA W.NICHOLS, AS SHE IS THE SOLE TRUSTEE OF CHARTER TRUST, Defendants This action was tried and a decision of today's date was rendered. In accordance with that decision it is ORDERED AND ADJUDGED that use of the property at 376 Essex Street, Salem, in the manner indicated by the plans submitted with the application for building permit 430-1995 (exhibit 5 in this action), or use of the property in the manner indicated by the"as- built" plans submitted at trial, would be a substantial change in the nonconforming use of the property; and it is further ORDERED AND ADJUDGED that any certificate of occupancy for the property must indicate that only one physician may practice medicine at locus and that that physician must reside at the property at least three week-day nights a week,two Friday nights a month and one Saturday night a month,vacations and emergencies excepted; and it is further ORDERED AND ADJUDGED that this matter is remanded to the board of appeals so that it may render a decision reversing the determination of the building inspector to the extent necessary to comply with this judgment and instructing the building inspector that any occupancy permit for the property must be in accordance with this j dL3 1 19 Ph ,98 By the Court. (Kilbom, C.J.) CII- Oi SALC�!. HASS MI RK'S Oi-FICF Attest: Charles W. Trombly, Jr. Recorder DATED: June 1, 1998 ATTESTi 4V. CHU of 'Sttlrm, 4Ea5SgCjjU5gttS -poarb of ASEP 3 II is PM '98 CITY OF SAL174. HASS CIFRK'S OFFICE AMENDMENT TO THE DECISION OF 376 ESSEX STREET This amendment is in regards to paragraph three (3 ) of the Decision of Donald L . Hodgeman . Paragraph should read: More specifically, the petitioner is requesting the Board rescind the decision of the Salem Zoning Enforcement Officer to issue a building permit and to prohibit issuance of a Certificate of Occupancy for the structure at 376 Essex Street , except for use of a portion of the structure as a professional office or home occupation by the individual residential owner to the extent such use was established prior to enactment of the Salem Zoning Ordinance ( R-2 ) . Sally�C. 'Aurtagh Clerk, Board of Appeal (E. Tin of Jziim f-Rae5caC17115PIf5 19 PhF AV�eal >4. SEP 4PR C!1Y Qj SALC!4. MASS CL l AK'S OF F!CF DECISION ON THE ?:TI-TIO` OF DONALD L F.ODGEMAN et REOUEESTING -'HE BOARD TO 3ESCiaD THE DECISION F03 -::E OPERT': C -.D AT 3. ESSEX STREET (R-2) hearing on this petition was held ,ianuary 1 . . 1996 and continued again to r'ebruary 21, 1996 and heard again March 20, :996 with the following Board Members present: Stephen Touchette, Chairman: Gary Barrett. Nina Cohen, Albert Hill and ?oseph Ywuc. Notice of the hearing was sent to abutters ar others and notices of the hearing were oroperiv published in the Salem Eveni News in accordance with Massachusetts General Laws Chapter 40A. Petitioners are requesting an Administrative Ruling in accordance with Sect'- IX of the Zoning Ordinance and hiGL =DA. Section ? elative to the use of the premises and Enforcement of Sections V-B i2 ! and (6 ) of -he _oning Ordinance with respect to said premises . ''ore specifically, the petitioner, owner of the property, is requesting the Board rescind the decision of the Salem Zoning =nfcrcement Officer to issue building permit for the property located at 376 :SSEX Street �R-21 . After hearing the evidence the Board of Appeal Wakes the following findings fact: Both the petitioner and the owner of the premises were represented by counsel , each of whom made oral presentations and submitted written briefs . _ . he ? roper-.: at 376 Essex Street 's _ocaced '-n _n ..-2 District. 3 . From approximately 1941 through 1981, the property was owned and used by Dr. .:ohn Cunney as a private residence and crofessionai office for his medical practice. In 1981, the property was purchased by Dr. Reynes and used as a residence and medical office unci'_ 1988, '.hen it was sold to c Kirsches. They used it as a residence and professional office until it was sold to the present owner, Charter Trust. The use of the property as a physician' s office within a private residen was an allowed use pursuant to the 1955 Zoning ::rdinances and it became non-conforming use in 1965 when the Salem 7onir.g Ordinance was changed. i . The non-conforming use as a physician's office '_n a private residence ha been continuously maintained to the present time. 5 . Dr. Shafer stated that she will use the premises as a medical office and a residence. She will see patients in conjunction with one ( 1 ) associat three (3) days a week. Dr. Shafer stated that she will employ other administrative and medical staff. 7 . Dr Shafer offered to register to vote in Salem, register her motor vehic in Salem and use her Essex Street address for her professional licenses. DECISION OF THE PETITION OF DONALD L. HODGEMAN FOR THE PROPERTY q LOCATED AT 376 ESSEX STREET (R-2) page two SEP T3 I 119 PH '98 CITY OF SA.FM. MASS 3. The physical changes to the building involved painting the :MdK'&rgFf-ICF replacing carpets, partitioning the "family" room into examination rooms, adding a handicap accessible bathroom and a handicap ramp. 9 . The petitioners presented testimony that the floor plan submitted with the application for the building permit showed an increase in floor space devoted to the medical practice over that used by prior owners. The petitioners also presented testimony that Dr. Cunney did not have any associates in practice with him and that he had one ( 1 ) employee. 10. A number of documents were received by the Board and made part of the public record. They include the following: 1 . Briefs submitted by both attorney's. 2. Letters, both in favor and opposition. 3. Signed petition from both in favor and opposition. Therefore, based on the above findings of fact and on evidence presented, the Zoning Board of Appeals voted three (3) in favor and two (2) opposed. Failing to garner the necessary four (4 ) votes, the Petition was denied. Petition Denied March 20, 1996 j r Stephen Touchette, Chairman Board of Appeal A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLA.NNI11'G BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed within 20 days after the date of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certification of the City Clerk that 20 days have elapsed and no appeal has been filed, or that, if such appeal has been filed, that it has been dismissed or denied is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or is recorded and noted on the owner's Certificate of Title. Board of Appeal SERAFINI, SERAFINI AND DARLING ATTORNEYS AT LAW 63 FEDERAL STREET SALEM. MASSACHUSETTS 01970 JOHN R. SERAFINI. SR. TELEPHONE JOHN R. SERAFINI.JR. 506-7440212 JOHN E. DARLING 617.5612743 ELLEN M.WINKLER TELECOPIER JOSEPH C. CORRENTI 506-741 4663 November 20, 1995 Leo E. Tremblay Zoning Enforcement Officer City of Salem One Salem Green Salem, Massachusetts 01970 RE: 376 Essex Street, Salem Dear Mr. Tremblay: Please be advised the this office represents the owner of the property located at 376 Essex Street (the "Premises") . I am in receipt of your letters dated February 13, 1995 and October 23 , 1995, copies of which are attached hereto for your convenience, concerning the proposed use for the Premises. We are in agreement with your statement that the legal use of the Premises is a "grandfathered mixed use of a physicians office and a residential unit" . Since approximately 1943 , the premises has continually maintained this mixed use. Dr. John Cunney first used the property in such manner until he sold it in 1981 to Dr. Reynes. Dr. Reynes maintained the mixed use until 1988, at which time Dr. Kirsch purchased the property and continued the mixed use. This year Dr. Kirsch sold the property to the Trustee of the Charter Trust, my client, who proposes to lease the premises to Dr. Beverly Shafer for her practice and private residence, continuing the mixed use. Previously, I have provided to your office a copy of the above- referenced deed transactions for your file. In 1955, a revised Zoning Ordinance was passed in which the office of a physician or surgeon located in a private residence became an allowed use as of right (not a special permit use) in the Apartment House District in which 376 Essex Street was located. The current Zoning Ordinance, which became effective in 1965, made the professional office use a special permit use and set parameters on professional office use within a dwelling, such as restrictions on the number of non-resident employees and limitations as to gross floor space (twenty-five percent) which may be dedicated to office use. Leo E. Tremblay November 20, 1995 Page 2 Clearly, these restrictions do not apply to the existing and proposed "grandfathered" use. It is exactly these changes as made in the 1965 Ordinance from which this use is "grandfathered". PRIOR LEGAL USE A question has arisen as to whether the mixed use of the premises by Dr. Cunney during the 1940's was a "legal" use prior to 1955. This question is particularly relevant as only a "lawful use . existing at the time of the adoption of the ordinance" may be continued or "grandfathered". In 1941 and throughout the 1940's and 1950's, 376 Essex Street was located in the Apartment House District. The Apartment House District, pursuant to the 1925 Zoning Ordinance, section 4, allowed the following uses as of right: 1. Any purpose or accessory use authorized in the single or general residence districts; 2 . Residence for three or more families, apartment house, apartment hotel or hotel; 3 . Such accessory uses as are customary in connection with the foregoing uses and are incidental thereto In 1944 the Ordinance was amended so as to add the words "lodging house" into paragraph 2 above after the words "apartment hotel". Uses which were allowed in the "single residence district", and thus the Apartment House District, during the 1940 's included the following in Section 2B: 1 . Single family detached house; 2 . Boarding or lodging houses; 8 . Hospital, sanitarium or other medical institution: 10. Such accessory uses as are customary in connection with the foregoing uses and are incidental thereto Leo E. Tremblay November 20, 1995 Page 3 The premises at 376 Essex Street when purchased by Dr. John Cunney in 1941 and converted into a mixed use of doctors office/residential was a legal use at that time, as the doctors office was an accessory use incidental to the allowed use of "hospital and medical institution". Certainly, since the premises could have been used as of right as a "hospital" , the use of a doctors office was allowed as an accessory and incidental use. In 1955, during the next major zoning revisions in the City, the "office of a physician or surgeon . . . located in his or her private residence" was ratified as an allowed use in the Single Residence and thus Apartment House District. Not until 1965 did this use become a Special Permit use and not a use as of right. Of course, Dr. Cunney and his successor were allowed to continue the medical office use at the premises, as a legal non-conforming use. Pursuant to G.L. c. 40A, §6, the use became "grandfathered" and thus, no zoning relief was necessary. It is this use which has continued unabated through 1995 and which is proposed to continue into the future. The law is clear on this point. Once a use is in compliance with the applicable zoning requirement, regardless of whether that use was previously noncomplying, the use becomes "grandfathered" as to all subsequently enacted zoning changes. Healy, Massachusetts Zoning Practice Under the Amended Zoning Enabling Act, 64 Mass. Law Review 157 (1979) . Therefore, the 1955 Ordinance, section 4 B(8) , makes lawful the "professional office of a physician or surgeon . in his or her private residence" . This then existing use is the continued and proposed use for the premises which becomes "grandfathered" from all zoning changes or amendments subsequent to 1955. Unfortunately, there has been much misinformation on exactly what the proposed use will be. So that it is clearly understood, the proposed use of the premises is as follows: Dr. Beverly Shafer will maintain a private residence at 376 Essex Street. She will also continue the professional doctor's office use from the premises. Dr. Shafer has one associate physician employed by her who will maintain part-time office hours. There will be no other physicians at the premises. Leo E. Tremblay November 20, 1995 Page 4 It is expected that the two doctors will rarely be in the office at the same time, and each will see patients on a limited, part-time basis. Presently, Dr. Shafer maintains her office at 355 Essex Street. She merely seeks to move her office across the street, while enjoying a private residence for her use. The physicians office located within the private premises will include the necessary facilities and assisting personnel to run the office. In discussing the definition of an accessory "professional office" the Massachusetts Supreme Judicial Court has held that where the professional use is allowed, such use "includes the use of all equipment, facilities, and assisting personnel reasonably necessary for the practice of the profession involved Any other construction would ' (destroy] the privilege given in that it would permit (the professional] to have an office but deny him, for all practical purposes, the privilege of using it' (cite omitted) . " Framingham Clinic v. Zoning Board of Appeals of Framingham, 382 Mass. 283, 292-293 (1981) . The fact that Dr. Shafer has a part-time associate does not change the characterization of the use as physician's office/ residential mixed use or the character, purpose or nature of the use so as to make it noncomplying with the "grandfathered" use and in need of zoning relief. The Massachusetts Supreme Judicial Court in the case of Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973) established three tests for determining whether an alteration of a non-conforming use constitutes a "change or substantial extension" of such use that will subject the resulting use to the application of the current zoning laws, i.e. whether the use will lose its protected grandfathered status. Powers established that if: 1. the resulting use does not reflect the nature and purpose of the non-conforming use prevailing when the zoning laws took effect, 2. there is a difference in the quality or character, as well as the degree, of the resulting use, or 3. the resulting use is different in kind and its effect on the neighborhood, then the zoning laws are applicable to the resulting use. Leo E. Tremblay November 20, 1995 Page 5 Powers at 653 ; see also Cane Resort Hotels. Inc. v. Alcoholic Licensing Board of Falmouth, 385 Mass. 205 (1982) ; Building Inspector of Groton v. Vlahos, 10 Mass. App. Ct. 890, 891 (1980) . Each of these three Powers tests has received extensive judicial consideration and will be discussed below. I. DIFFERENT "NATURE AND PURPOSE" OF USE Despite an increase in volume from the prior non- conforming use, or an extension of hours or periods of operation, a resulting use may still be deemed to reflect the same nature or purpose that previously existed. For example, all of the following were held not to constitute a change or substantial extension of the non-conforming use that would subject the resulting use to the current zoning laws: an increase in the volume of business of a junkyard, Building Inspector of Seekonk v. Amaral, 9 Mass. App. Ct. 869 (1980) ; an increase in the number of customers, Selectmen of Blackstone v. Tellestone, 4 Mass App. Ct. 311, 315 (1976) ; an increase in the volume and variety of goods sold, Powers; and the change from a seasonable motel to a year-round operation McAleer v. Board of Appeals of Barnstable, 361 Mass. 317 (1972) . Furthermore, alterations in the manner of use to increase efficiency, such as the deployment of improved equipment or more efficient equipment do not necessarily constitute a change in the nature and purpose of the undertaking. The rule appears to turn on whether the alterations are ordinarily and reasonably adapted to the original use. In the present case, the alterations for which a building permit was issued were to upgrade the electrical service and the plumbing and to install two partition walls and a handicap bathroom. These alterations were made to modernize the premises so as to be able to conduct the original use of a doctor's office. Leo E. Tremblay November 20, 1995 Page 6 II. DIFFERENT "QUALITY, CHARACTER OR DEGREE" OF USE The second Powers test provides that the current zoning laws apply to the alteration of a non-conforming use if the resulting use constitutes a change in the quality or character, as well as the degree, of the prior non-conforming use. This test is similar to the first Powers test, and the courts have tended to discuss both tests simultaneously. The cases discussed below, however, have placed more emphasis on the second Powers test. Situations in which it was found that the changed uses were not different in quality or character, and thus were upheld, include the following: an increase in the volume of wholesale and retail sales, as well as an increase in the number of products manufactured on the premises; Powers, supra; an increase in the number of trucks and buses stored on premises originally used for the storage of busses and trucks; Blackstone, supra; the change from the storage of fuel products to storage of petroleum derived building materials, Derby Ref. Co. v. Chelsea, 407 Mass. 703 (1990) . A difference in the degree of use is not, by itself, critical. Generally, a "mere increase in the amount of business done, even a great increase would not work a change in use." Marblehead v. Rosenthal, 316 Mass. 124, 128 (1944) . In the present case, while it is difficult to determine exactly, it is believed that the original use, i.e. Dr. Cunney's medical office, was a more intense use than the proposed use of Dr. Shafer's practice. III. DIFFERENT EFFECT ON NEIGHBORHOOD The third Powers test provides that the current zoning laws apply to the alteration of a non-conforming use if the resulting use differs from the prior non-conforming use in its effect on the neighborhood. Only an increase in the severity of the adverse aspects of the use will trigger a "different in kind" holding. A resulting use that produces dust, fumes and noise will Leo E. Tremblay November 20, 1995 Page 7 not necessarily be found to be different in kind in the effect on the neighborhood, if the prior non-conforming use similarly produced dust, fumes and noise. Derby Ref. Co. , supra at 717. A long line of Supreme Judicial Court opinions have established that the existence of a lawful non-conforming use does not permit the erection of additional structures for extension of the use, absent express authorization by the local zoning law. Of course, no such additional structures are proposed in the present case. Again, the effect on the neighborhood from the proposed use is likely to be less severe than the original use due to the restricted days and hours in which patients are expected to be seen. Finally, Dr. Shafer currently conducts her practice within the very same neighborhood. ABANDONMENT Section 6 of the Zoning Act provides that a municipality's zoning laws may define and regulate non-conforming uses and structures "abandoned or not used" for a period of two years or more. I have previously provided for your review a run- down of title to the property beginning in 1941 which shows that the property has consistently maintained its mixed use of doctors office and residential character, uninterrupted to the present day. CONCLUSION The proposed mixed use of doctors office/residential is a "grandfathered" nonconforming use which has not been abandoned, and thus is allowed to continue. The character, degree and quality of the use, as well as its nature and purpose, has not adversely changed. The practice is presently within the very neighborhood of the premises and will in all likelihood have less of an adverse impact than the original use. For these reasons, Dr. Shafer should be allowed to occupy the premises and maintain the doctors office/residential use. If you have any questions or require any additional information, please do not hesitate to call me. Ve tr 1 OS PH C. CORRENTI JCC/ln enclosures cc: Robert A. Ledoux, Esq. Titg of i� tt1Em, fttssar4usetts Public Proverlg Department "Bay" +iguilbinu i9epartment (9ne !Salem Noreen 506-745-9595 Ext. 300 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer November 21 , 1995 City of Salem Solicitor Attorney LeDoux Federal Street Salem, Mass . 01970 RE : 376 Essex Street Dear Attorney LeDoux : I realize that you are in receipt of the material I have received from Attorney Joseph Correnti , who is with Serafini , Serafini and Darling, concerning the above mentioned property. I am at this time requesting your legal opinion as to the use of the property located at 376 Essex Street . It is my opinion that the legal use is a nonconforming mixed use of residential and Doctor ' s Office . This was the legal use according to the 1925 City of Salem Zoning Ordinance . In 1955 our zoning changed and Section 12 of the 1955 City of Salem Zoning Ordinance reads as follows : Non-conforming buildings , structures and uses . A. Any lawful building or structure or premises or part thereof existing at the time of the adoption of this ordinance or any amendment thereof may be continued although such building, structure or use does not conform to the provision thereof. In 1965 the City of Salem Zoning Ordinance were again changed and I refer you to Section 8-3 of the Zoning Ordinance which reads ; Section 8-3 Nonconforming use of Land- Where use of land exist that is made no longer permissible under the terms of this ordinance or amendment , such use may be continued so long as it remains otherwise lawful , subject to the following provisions ; 1 . Such nonconforming use shall not be enlarged, increased or extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this ordinance . 3 . If any nonconforming use of land is discontinued for any reason for a period of twelve ( 12 ) consecutive months , any subsequent use of such land shall conform to the regulations specified by this ordinance for the district in which such land is located . This property has shown a continued use as a residential unit and a Doctors office and per zoning may continue in my opinion . Now I refer you to Section 8-5 of the 1965 zoning ordinance which reads ; Section 8-5 Nonconforming use of structure . If a use of a structure or a structure and premises in combination exist that would not be allowed in the district under the terms of this ordinance or amendment , the use may continue as long as it remains otherwise lawful , subject to the following provision; ( 2 ) Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this ordinance, but no such use shall be extended to occupy any land outside such building. I do not feel the density regulations are being changed in any way, and the property does have adequate parking for the use of a dwelling unit in a doctors office . Should the amount of allowed doctors on premises be subject the allowed area of parking on premises? Should the allowed doctors office, be allowed an associate to practice on premises , and if so how many? This office will not issued an occupancy permit at this location until a legal determination has been received by your office . Thank you in advance for ,your anticipated cooperation in this matter . Sincerely, Leo E . Tremblay / Zoning Enforceme(E Officer LET: scm cc : David Shea Joseph Correnti Councillor Harvey, Ward 2 Jane Stirgwold Stephen Touchette Len Femino RONAN, SEGAL & HARRINGTON ATTORNEYS AT LAW FIFTY NINE FEDERAL STREET JAMES T.RONAN(1922-1987( SALEM,MASSACHUSETTS 01970-3470 OY 1I 44 Py ep� JACOBS.SEGAL �l J MARY PIEMONTE HARRINGTON ci fy 01' p BREIAON PECA&RYS.III FA(X 0(508]58) 444437493 r� 1 ��K'g(01 (M ICO SS � _ 2 G- pM C3 � W o. C� —r �—J ...i,. C7 C'-U�Y November 21, 1995 p N 1- '.-'l p F_ co J U City of Salem City of Salem Zoning Board of Appeals Leo A. Tremblay One Salem Green One Salem Green Salem, MA 01970 Salem, MA 01970 Re: 376 Essex Street, Salem, MA Members of the Board and Mr. Tremblay: Enclosed is a Notice of Appeal of a decision of the City of Salem Zoning Enforcement Officer reference the above-cited premises which is hereby filed in accordance with Massachusetts General Laws Chapter 40A, Sections 7, 8, and 15 and the Salem Zoning Ordinance Section 9-3(d) ( 1) . DONALD L. HODGMAN ET AL By their attorneys, RO , SEG�ALL & R GTON B Geo a W. ins, III 0#: 023 0 59 Federal Street Salem, MA 01970 508-744-0350 kmb Enclosure cc: L. Nichols, Trustee, Charter Trust Robert A. Ledoux, Esq. i NOTICE OF APPEAL #0v3 TO THE CITY OF SALEM y� r Ppp ZONING BOARD. OF APPEALS JJ •i P, 'r�0 ta y�q;'s Donald L. Hodgman of 373 Essex Street, Salem, Massachusetts, and others listed on Exhibit A attached hereto (collectively, Petitioners) hereby give notice of appeal of a decision of the Zoning Enforcement Officer in accordance with Massachusetts General Laws Chapter 40A, Sections 7, 8, and 15 and the Salem Zoning Ordinance Section 9-3(d) ( 1) . A Building Permit Application for Alterations to the premises at 376 Essex Street, Salem, Massachusetts, was submitted to and a Building Permit issued by the Salem Building Inspector's office on August 15, 1995 . Petitioners ' request for enforcement was delivered to the Zoning Enforcement Officer on October 16, 1995, and a decision of the Zoning Enforcement Officer refusing to take enforcement action was issued on October 23, 1995 . Petitioners hereby request the Salem Zoning Board of Appeals as follows : 1. To rescind the decision of the Building Inspector to issue the Building Permit for construction at 376 Essex Street. 2 . To prohibit issuance of a Certificate of Occupancy for the structure at 376 Essex Street, except for use of a portion of the structure as a professional office or home occupation by an individual residential owner to the extent such use was established prior to enactment of the Salem Zoning Ordinance. As grounds therefor, Petitioners state as follows: 1 . The Building Permit Application and the plans submitted therewith on their face describe a nonresidential use not permitted in the zoning district in accordance with Section 5-2 (a) and (b) of the Salem Zoning Ordinance, namely, use as professional offices . 2 . The Building Permit Application and the plans submitted therewith on their face describe a substantial extension from a nonconforming use which requires the grant of a special permit by the Zoning Board of Appeals in accordance with Section 5-3( j ) , 8-6 , and 9-4 of the Salem Zoning Ordinance, namely, expansion of a single physician residential owner's use of two rooms as a professional office to use of two floors of the structure for professional offices by more than one non-owner and non-resident physician. 3. That the decision of the Building Inspector in response to the enforcement request of the Petitioners reciting that a Certificate of Occupancy will issue for "only one doctors office and only one dwelling unit" is contrary to the Building Permit Application and the plans submitted therewith and the decision must limit use and occupancy to the extent and nature of the prior nonconforming use, namely, use of two rooms for a professional office or home occupation by a single physician who is a residential occupant and owner of the premises . November 21, 1995 DONALD L. HODGMAN ET AL By their attorneys, RON , GAL & GTON eorge W. A s, III x BBO#: 023 59 Federal Street Salem, MA 01970 ., 508-744-0350 'S r c� N EXHIBIT A �, s 1• Donald L. Hodgman 373 Essex Street, Salem, Messachsuetts *„ o 2. Martha Field Hodgman 373 Essex Street, Salem, Massachsuetts 3. John F. Davis, Jr. 374 Essex Street, Salem,Massachusetts 4. Alyce M. Davis 374 Essex Street, Salem,Massachusetts 5. John Casey 17 Flint Street, Salem, Massachusetts 6. Bruce Goddard 17 Flint Street, Salem,Massachusetts 7. Steven K Gregory 141 Federal Street, Salem,MA 8. Mary Kathryn Bratun 141 Federal Street, Salem, MA 9. William H. Guenther 365 Essex Street, Salem,MA 10. Diedre Guenther 365 Essex Street, Salem, MA 11. Annie Harris 28 Chestnut Street, Salem, MA 12. Timothy Clarke 361 Essex Street, Salem, Massachusetts 13. Alice Clarke 361 Essex Street, Salem,Massachusetts 14. Palmer Swecker 380 Essex Street, Salem, Massachusetts 15. William S. Clough 143 Federal Street, Salem, Massachusetts ` w /4, ; Titu of t'�tt1Pm. .fagBar4usEtta Public Propertg Department Nuilbing Department l9nr 0-stem Green 508-745-9595 Ext. 380 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer November 21 , 1995 City of Salem Solicitor Attorney LeDoux Federal Street Salem, Mass . 01970 RE : 376 Essex Street Dear Attorney LeDoux : I realize that you are in receipt of the material I have received from Attorney Joseph Correnti , who is with Serafini , Serafini and Darling, concerning the above mentioned property. I am at this time requesting your legal opinion as to the use of the property located at 376 Essex Street . It is my opinion that the legal use is a nonconforming mixed use of residential and Doctor ' s Office . This was the legal use according to the 1925 City of Salem Zoning Ordinance . In 1955 our zoning changed and Section 12 of the 1955 City of Salem Zoning Ordinance reads as follows : Non-conforming buildings , structures and uses . A. Any lawful building or structure or premises or part thereof existing at the time of the adoption of this ordinance or any amendment thereof may be continued although such building, structure or use does not conform to the provision thereof. In 1965 the City of Salem Zoning Ordinance were again changed and I refer you to Section 8-3 of the Zoning Ordinance which reads ; Section 8-3 Nonconforming use of Land- Where use of land exist that is made no longer permissible under the terms of this ordinance or amendment , such use may be continued so long as it remains otherwise lawful , subject to the following provisions ; 1 . Such nonconforming use shall not be enlarged, increased or extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this ordinance . 3 . If any nonconforming use of land is discontinued for any reason for a period of twelve ( 12 ) consecutive months , any subsequent use of such land shall conform to the regulations specified by this ordinance for the district in which such land is located . This property has shown a continued use as a residential unit and a Doctors office and per zoning may continue in my opinion . Now I refer you to Section 8-5 of the 1965 zoning ordinance which reads ; Section 8-5 Nonconforming use of structure . If a use of a structure or a structure and premises in combination exist that would not be allowed in the district under the terms of this ordinance or amendment , the use may continue as long as it remains otherwise lawful , subject to the following provision; ( 2 ) Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this ordinance, but no such use shall be extended to occupy any land outside such building . I do not feel the density regulations are being changed in any way, and the property does have adequate parking for the use of a dwelling unit in a doctors office . Should the amount of allowed doctors on premises be subject the allowed area of parking on premises? Should the allowed doctors office, be allowed an associate to practice on premises , and if so how many? This office will not issued an occupancy permit at this location until a legal determination has been received by your office . Thank you in advance for your anticipated cooperation in this matter . Sincerely, 9 �-1 Leo E . Tremblay / Zoning Enforceme(qe Officer LET: scm cc: David Shea Joseph Correnti Councillor Harvey, Ward 2 Jane Stirgwold Stephen Touchette Len Femino Coity of 3tt1Em, _4Rttssttr4USrtts Public PropertU Department +fuilbing Erepartment (Onr dalrm Garcon 500-745-9595 Ext. 300 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer November 21 , 1995 Joseph Correnti 63 Federal Street Salem, Mass . 01970 RE : 376 Essex Street Dear Attorney Correnti : I have received your letter and additional material concerning 376 Essex Street and must inform you that I have requested from the City of Salem Solicitor a legal opinion. Until I have received such, I feel under the circumstances that I can not issued an occupancy permit for the use of the property for a dwelling unit and two doctors at this time, or until I have a legal interperta -tion of the City of Salem Zoning Ordinances that apply to this property by the City of Salem Solicitor . Sincerely, Leo E . Tremblay / Zoning Enforcement Officer LET: scm cc: Robert LeDoux David Shea Councillor Harvey Councillor Stirgwolt Stephen Touchette Len Femino RONAN, SEGAL & HARRINGTON =iFrY.nwE __---_smE=- y :AMMES »+NAN�'C22.0'.°' SALEM.Pf4.`aAC- 01970-=e70 0Y 3 JACOc 5 EGAL CIJJ �MARV^2':IONiE q 4-,Q NG-` i GEORG'_:J iit:NS. BRIAN �Ass�v -'0] 44; on November 21, 1995 ry r :.I U City of Salem City of Salem Zoning Board of Appeals Leo A. Tremblay One Salem Green One Salem Green Salem, MA 01970 Salem, MA 01970 Re: 376 Essex Street, Salem, MA Members of the Board and Mr. Tremblay: Enclosed is a Notice of Appeal of a decision of the City of Salem Zoning Enforcement Officer reference the above-cited premises which is hereby filed in accordance with Massachusetts General Laws Chapter 40A, Sections 7 , 8, and 15 and the Salem Zoning Ordinance Section 9-3(d) ( 1) . DONALD L. HODGMAN ET AL By their attorneys, RO C9. SEGAL & R GTON Geoff a W. ins, III O#: 023650 59 Federal Street Salem, MA 01970 508-744-0350 kmb Enclosure cc: L. Nichols, Trustee, Charter Trust Robert A. Ledoux, Esq. NOTICE OF APPEAL TO THE CITY OF SALEM ZONING BOARD OF APPEALS � � :Q Donald L. Hodgman of 373 Essex Street, Salem, Massachusetts, and others listed on Exhibit A attached hereto (collectively, Petitioners ) hereby give notice of appeal of a decision of the Zoning Enforcement Officer in accordance with Massachusetts General Laws Chapter 40A, Sections 7, 8, and 15 and the Salem Zoning Ordinance Section 9-3 (d) ( 1) . A Building Permit Application for Alterations to the premises at 376 Essex Street, Salem, Massachusetts , was submitted to and a Building Permit issued by the Salem Building Inspector's office on August 15, 1995 . Petitioners ' request for enforcement was delivered to the Zoning Enforcement Officer on October 16, 1995, and a decision of the Zoning Enforcement Officer refusing to take enforcement action was issued on October 23 , 1995 . Petitioners hereby request the Salem Zoning Board of Appeals as follows: 1 . To rescind the decision of the Building Inspector to issue the Building Permit for construction at 376 Essex Street. 2 . To prohibit issuance of a Certificate of Occupancy for the structure at 376 Essex Street, except for use of a portion of the structure as a professional office or home occupation by an individual residential owner to the extent such use was established prior to enactment of the Salem Zoning Ordinance. As grounds therefor, Petitioners state as follows: 1. The Building Permit Application and the plans submitted therewith on their face describe a nonresidential use not permitted in the zoning district in accordance with Section 5-2 (a) and (b) of the Salem Zoning Ordinance, namely, use as professional offices . 2 . The Building Permit Application and the plans submitted therewith on their face describe a substantial extension from a nonconforming use which requires the grant of a special permit by the Zoning Board of Appeals in accordance with Section 5-3 ( j ) , 8-6 , and 9-4 of the Salem Zoning Ordinance, namely, expansion of a single physician residential owner's use of two rooms as a professional office to use of two floors of the structure for professional offices by more than one non-owner and non-resident physician. 3 . That the decision of the Building Inspector in response to the enforcement request of the Petitioners reciting that a Certificate of Occupancy will issue for "only one doctors office and only one dwelling unit" is contrary to the Building Permit Application and the plans submitted therewith and the decision must limit use and occupancy to the extent and nature of the prior nonconforming use, namely, use of two rooms for a professional office or home occupation by a single physician who is a residential occupant and owner of the premises . November 21, 1995 DONALD L. HODGMAN ET AL By their attorneys , RON GAL & GTON orge W. AAkhs, III _ o BBO#: 0239510 59 Federal Street - _ Salem, MA 01970 = 508-744-0350 u� c� tri o 1 Donald L. Hodgman 373 Essex Street, Salem,Massachsuetts _ r 2. Martha Field Hodgman 373 Essex Street, Salem, Massachsuetts u� 3. John F. Davis, Jr. 374 Essex Street, Salem,Massachusetts 4. Alyce M. Davis 374 Essex Street, Salem,Massachusetts S. John Casey 17 Flint Street., Salem, Massachusetts 6. Bruce Goddard 17 Flint Street, Salem,Massachusetts 7. Steven K Gregory 141 Federal Street, Salem, MA 8. Mary Kathryn Bratun 141 Federal Street, Salem, MA 9. William H. Guenther 365 Essex Street, Salem,MA 10. Diedre Guenther 365 Essex Street, Salem,MA 11. Annie Harris 28 Chestnut Street, Salem, MA 12. Timothy Clarke 361 Essex Street, Salem, Massachusetts 13. Alice Clarke 361 Essex Sheet, Salem,Massachusetts 14. Palmer Swecker 380 Essex Street, Salem, Massachusetts 15. William S. Clough 143 Federal Street, Salem, :Massachusetts of �ttlan .4fittsjjttr4USj!ttjj Public Prupertp i3 partment Nuilbinu Department (One 016alem (6reen 500-745-9593 FXt. 300 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer November 21 , 1995 City of Salem Solicitor Attorney LeDoux Federal Street Salem, Mass . 01970 RE: 376 Essex Street Dear Attorney LeDoux: I realize that you are in receipt of the material I have received from Attorney Joseph Correnti , who is with Serafini , Serafini and Darling, concerning the above mentioned property. I am at this time requesting your legal opinion as to the use of the property located at 376 Essex Street . It is my opinion that the legal use is a nonconforming mixed use of residential and Doctor ' s Office . This was the legal use according to the 1925 City of Salem Zoning Ordinance. In 1955 our zoning changed and Section 12 of the 1955 City of Salem Zoning Ordinance reads as follows : Non-conforming buildings , structures and uses . A. Any lawful building or structure or premises or part thereof existing at the time of the adoption of this ordinance or any amendment thereof may be continued although such building, structure or use does not conform to the provision thereof. In 1965 the City of Salem Zoning Ordinance were again changed and I refer you to Section 8-3 of the Zoning Ordinance which reads ; Section 8-3 Nonconforming use of Land- Where use of land exist that is made no longer permissible under the T r,. terms of this ordinance or amendment , such use may be continued so long as it remains otherwise lawful , subject to the following provisions ; 1 . Such nonconforming use shall not be enlarged, increased or extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this ordinance . 3 . If any nonconforming use of land is discontinued for any reason for a period of twelve ( 12 ) consecutive months , any subsequent use of such land shall conform to the regulations specified by this ordinance for the district in which such land is located . This property has shown a continued use as a residential unit and a Doctors office and per zoning may continue in my opinion. Now I refer you to Section 8-5 of the 1965 zoning ordinance which reads ; Section 8-5 Nonconforming use of structure . If a use of a structure or a structure and premises in combination exist that would not be allowed in the district under the terms of this ordinance or amendment , the use may continue as long as it remains otherwise lawful , subject to the following provision; ( 2 ) Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this ordinance , but no such use shall be extended to occupy any land outside such building. I do not feel the density regulations are being changed in any way, and the property does have adequate parking for the use of a dwelling unit in a doctors office . Should the amount of allowed doctors on premises be subject the allowed area of parking on premises? Should the allowed doctors office, be allowed an associate to practice on premises , and if so how many? This office will not issued an occupancy permit at this location until a legal determination has been received by your office . i l r-. Thank you in advance for your anticipated cooperation in this matter . Sincerely, Leo E . Tremblay Zoning Enforceme(p;t Officer LET: scm cc: David Shea Joseph Correnti Councillor Harvey, Ward 2 Jane Stirgwold Stephen Touchette Len Femino 05/31/95 WED 16:31 FAX Sob 745 5706 HUNNEMAN SALEM L0002 I itu of *a1Pm, Massa0uslett8 ilubitc 11ropertg fepactm at Nuiibing 19epartmrnt (Pas "em M"to 506-745-9595 Ett, 389 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer February 13, 1995 To Whom it May Concern: RE: 376 Essex Street The legal use of the above mentioned property is a grandfathered mixed use, consisting of a physicians office and a residential unit. This use may legally continued until such time as the physicians office has been discontinued for a period of two (2) years or more at which time it would revert back to a dwelling unit in a R-2 zoning area. If this office can be of any further assistance please do not hesitate to call. Sind' Leo E_ Tremblay Zoning Enforcement Of cer LET: scm SERAFINI, SERAFINI AND DARLING ATTORNEYS AT LAW 63 FEDERAL STREET SALEM, MASSACHUSETTS 01970 JOHN R. SERAFINI, SR. TELEPHONE JOHN R. SERAFINI,JR, 508.744-0212 JOHN E. DARLING 617-581-2743 ELLEN M. WINKLER TELECO PIER JOSEPH C. CORRENTI June 24, 1997 508.741-4683 Mr. Leo E. Tremblay Building Commissioner City of Salem One Salem Green Salem, MA 01970 RE: Request for Certificate of Occupancy 376 Essex Street, Salem Dear Mr. Tremblay: This letter is to request the issuance of a Certificate of Occupancy for the property located at 376 Essex Street. As you know, a building permit was issued for work to be done at 376 Essex Street on August 15, 1995. The house has a continuous use as doctor's and professional offices dating back to the 1940 ' s when it was purchased by John Cunney, M.D. That use has been unbroken through 1995, when the property was purchased by Charter Trust. The proposed use is for Dr. Beverly Shafer to maintain a medical office for her practice only within her private residence at 376 Essex Street. Dr. Shafer has been ready to occupy the premises for well over a year now. All of the construction work has been completed. However, because the zoning for this property has been challenged, first to the Board of Appeal and then to hand Court, no Certificate of Occupancy has been issued. As you know, all of the appropriate departments have signed off on the building permit. Please let me know if you would like to conduct a final walk-through of the building prior to issuing the Certificate of Occupancy, and I will make the appropriate arrangements. Sincerely, CHARTER TRUST By its att ey, (/�/ /, SEP C. CORRENTI JCC/ln (situ of '§3� ulrm, Aassar4usrtts 13uhlir Vrupertg Department Nuilaing i9epartmcnt (One 8a(etn <rareen 508-745-9595 Ext. 388 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer October 23 , 1995 Straub & Meyers 70 Washington Street Salem, Mass . 01970 RE : 376 Essex Street Dear Ms . Meyers : Let me begin by stating that a cease and desist work order can not be issued on speculations from neighbors who think the premises are going to be used illegally. Let me further assure you that the property will not be used illegally. A Certificate of Occupancy has not been issued, and must be issued before the premises can be occupied. The Certificate of Occupancy will clearly indicate that only one Doctors office and only one dwelling unit are legal on premises at 376 Essex Street. Until someone can overturn my decision on this matter by means of documentation, it will remain as such, or until the owners excersize their rights through the City of Salem Board of Appeals . The construction of the handi-cap ramp has been stopped until proper permission is obtained from the Historic Commission. This was an oversite by my department thinking that if the structure was not in view from the front of the property, (which we anticipated would not be seen when reviewing the drawings ) a Certificate of Appropriateness was not required, we have since learned that a Certificate is required whether it is seen or not . If this office can be of any further assistance in this or any other matter please do not hesitate to call . Sincerely, �l Leo E. Tremblay Inspector of Buildings LET: scm cc: Robert Ledoux David Shea Councillor Harvey, Ward 2 s t , SERAFINI, SERAFINI AND DARLING ATTORNEYS AT LAW 63 FEDERAL STREET SALEM. MASSACHUSETTS 01970 JOHN R. SERAFINI. SR. TELEPHONE JOHN R. SERAFINI.JR. 506.744.0212 JOHN E. DARLING 617.561.2743 ELLEN M. WINNLER TELECOPIER JOSEPH C. CO RREN TI SOB-741741.46�46B3 November 20, 1995 IN HAND Leo E. Tremblay Zoning Enforcement Officer City of Salem One Salem Green Salem, Massachusetts 01970 RE: 376 Essex Street, Salem Dear Mr. Tremblay: Enclosed is a copy of a letter delivered to the Councillors this day and to the City Solicitor. Sincerely, JOHN R. SERAFINI, JRS,SR. /ln enclosure SERAFINI, SERAFINI AND DARLING ATTORNEYS AT LAW 63 FEDERAL STREET SALEM. MASSACHUSETTS 01970 JOHN R. SERAFINI. 8R. TELEPHONE JOHN R. SERAFINI.JR. 508.744-0212 JOHN E. DARLING 617 5812743 ELLEN M. WINKLER TELECOPIER JOSEPH C. CORRENTI 508-7414683 November 20, 1995 Councillor Dear Councillor I understand that there is still some confusion relative to the use regarding 376 Essex Street. I met with a representative group of neighbors together with their attorney on Friday night in an attempt to clarify the situation once and for all. You should be aware of the following. Dr. Beverly Shafer, a reconstructive and plastic surgeon, currently practices at 355 Essex Street, and is planning to move her office to 376 Essex Street. Dr. Shafer has an associate surgeon in her practice who, while maintaining an office in Amesbury, sees patients in Salem one day per week. The premises at 376 Essex Street has a history of being occupied by physicians, commencing in the early 1940 ' s and continuing uninterrupted to the present day. The private residence character of 376 Essex Street and the medical office use has been continuous for some fifty-five years. The private residence use will continue and two physicians will simply move their practice from the corner of Essex and Hamilton Streets to the building. Dr. Shafer has the premises under lease with an option to buy. North Shore Medical Center, in order to assist in financing, had acquired the property on Dr. Shafer's behalf. As soon as her option is exercised, she will become the owner. The nature of the practice of Dr. Shafer and her associate is much less intense than the general practices that existed in this building before the present contemplated use. There will be no evening hours, nor Saturday or Sunday hours. Again, it is contemplated that patients will only be seen at the premises three days per week. Because both physicians are surgeons, their day begins many times at 6: 00 A.M. , and, generally, they will be in surgery three days a week. The contemplated medical office use is in virtually every respect, less intense than what it has been in the past. Councillor November 20, 1995 Page 2 It is unclear as to why certain people in the neighborhood have undertaken to categorize uses on this property without bothering to find out the actual facts. Property owners are entitled, whether they are institutions or individuals, to rely on existing uses and zoning. Building permits are issued when plans comply with existing State, Building Code and other zoning requirements. It is important for everyone that this procedure be recognized. Interference with the procedure that is required by law to be followed by any property owner would unnecessarily create confusion. I hope that the Council clearly understands that the contemplated use of this property will be a private residence together with Dr. Shafer's office. Sincerely, JOHN R. SERAFINI, SR. Attorney for North Shore Medical Center JRS, SR. /ln Qti - . r NOTICE REGA0ING ZONING ORDINANCE This Ordinance dated as approved - November 2, 1925 is an exact . copy of the Ordinance adopted by the City on that date and attested by the City Clerk. _ . This copy, can, therefore, be construed as a true copy of the Salm Zoning Ordinance adopted - November 2, 1925, and approved by the Mayor on November 10, 1925. #1 #1075 - 1925 1925 #1075 In the year one thousand nine hundred and twenty five, An (PrbitutUrt relating to zoning. Be it ordained by the City Council of the City of Salem, as follows: 5jPrtWn 1. Establishment of Districts. For the purpose of this ordinance, the City of Salem is hereby divided into seven classes of districts to be known as 1. Single residence districts 2. General residence districts 3. Apartment house districts 4. Semi-residence districts 5. Business districts , 6. - Industrial districts 7. Unrestricted districts as shown on the map which accompanies this ordinance, entitled: "Zoning Map," filed in the office of the City Engineer, which map, together with all the. boundary lines and designations thereon, is hereby made a part of this ordinance, Section 2, Single Residence Districts. In the single residence districts, no new building or structure, or part thereof, shall be constructed or used and no existing building or structure or part thereof, shall be altered, enlarged, reconstructed or used for A. Any industry, trade, manufacturing, or commercial purpose; or. for B. . Any purpose except one or more of the following specified uses: 1. Single family detached house, unless otherwise permitted by 44 the Board of Appeal under the provisions of section 14; 2. Boarding or lodging house; 3. Church of other place of worship; 4. Public School or other public use; 5. Private school, college, museum, or other use of an Ceducational character; • 6. Club, except a club the chief activity of which is a service customarily carried on as a business; 7. Public or semi-public institution of a philanthropic, charitable, or religious character, but not a correctional institution; 8. Hospital, sanitarium,_or_other.medical_institution; 9. Farm, Market garden, nursery, or greenhouse, including the sale of natural products raised on the premises, but not including any use or the extension of any existing use which would be injurious, obnoxious, or offensive to the neighborhood; 10. Such accessory uses as are customary in connection with the foregoing uses and. are. incidental-thereto, including a private garage, group garage, or private stable Section 3 Ceneral Residence Districts. In the general residence districts, no new building or structure, or part thereof shall be constructed or used and-no existing building or structure,or part thereof, shall be altered, enlarged, reconstructed or used for A. Any industry, trade, manufacturing, or. commercial p2rposGe; or for CBAnypurpose except one or more of the following specified uses Any-purpose.or accessory use authorized in the single residence dist"ri c; 2. _ Double or semi-detached house, two family house, or group house consisting of three or more contiguous single family houses separated by party walls; 3. Such accessory uses as are customary in connection with the foregoing uses and are incidental thereto, including a private ,t! E• garage, group garage, or private stable. Section 4. Apartment House Districts. In .the apartment house districts, no new building or structure, or part thereof, shall be constructed or used and • no existing building or structure, or part thereof, shall be altered, enlarged reconstructed or used for A. Any industry, trade, manufacturing, or commercial purpose; or for B. Any purpose except one or more of the following specified uses 1, Any purpose or accessory use authorized in the single or general residence districts; 2. Residence for three or .more families, apartment house, apartment hotel, or.hotel; - 3. Such accessory uses as are customary in connection with the foregoing uses and are incidental thereto, including a private garage, group garage, .or private stable. Section 5. Semi-Residence Districts. or t A. In the semi residence districts, new buildings and structures may • be constructed and used and existing buildings and structures may be altered, enlarged, reconstructed, and used for any purpose or accessory use authorized in the single residence, general residence, or apartment house districts; but for no other purpose or use,_except that B. The first floor, basement, and cellar of any new or existing building or structure may be used for one or more of the purposes and accessory uses authorized in the business districts, including a private garage or private stable, group garage, business garage or business stable, gasoline filling station, service station, but not a public garage or public stable, or a motor vehicle repair shop. Section 6. Business Districts. In the business districts, no new building or structure, o; part thereof, shall be constructed or used and no existing building r ' or structure, or part thereof, shall be altered, enlarged, reconstructed, • or used for A. Any purpose except one or more of the following specified uses: 1. Any purpose or accessory use authorized in the single residence general residence, apartment house, or semi residence districts; 2.; Store, salesroom, or showroom for the conduct of retail or whole- sale business; 3. Office of any kind; 4. Bank or other monetary institutions; 5. Restaurant or other eating place; 6. Club or other organization, dancing academy, theater,' hall, or other place of amusement or assembly; 7. Public or semi-public building; 8. Place of business of a • Baker Dressmaker Mason Roofer Builder Druggist Milliner Shoemaker Butcher Dyer Newspaper Shoe repairer Cabinet Maker Electrician Optician Shoe shiner Carpenter Florist Painter Tailor Caterer - Furrier Paper hanger Tinsmith Cleaner Grocer Photographer Telephone Exchange Confectioner Hair Dresser Plumber Undertaker Contractor Laundry Printer Upholsterer Decorator Manicure Publisher 9. Private garage or private stable, group garage, business garage or business stable, gasoline filling station, service station, public garage or public stable, or motor vehicle repair shop; 10. Any additional nse which the Board of Appeal, upon petition and under the procedure provided in the Building Ordinance, may permit in a specific case, provided that the Board finds that C (a). The proposed use is similar to one or more of the uses • previously authorized by this section; (b). The exclusion of such additional. use from a business district would involve practical difficulty or unnecessary hardship; (c) Such use would not substantially reduce the value of any property within the district nor otherwise be injurious, obnoxious, or offensive to the neighborhood; 111. Such accessory uses as are customary in connection with the - foregoing uses and are incidental thereto; B. In addition, such industry, trade, or manufacturing shall be carried on in any building or structure as are customary in connection with the foregoing uses and are incidental thereto; provided that 1. No industry, trade, or manufacturing shall be carried on in a business district which is (a) Prohibited or not authorized in the industrial districts; or would be (b) Injurious, obnoxious, or offensive to a neighborhood by reason of noise, vibration, smoke, cinders, odor, gas, fumes, dust, chemicals, or other objectionable feature; or would be (c) Dangerous to a neighborhood through fire, explosion or any other cause; 2. The total floor .space which may be used for manufacturing in any building or structure shall, not exceed three thousand square feet, unless otherwise permitted by the Board of Appeal under the provisions of Section 14. Section 7. Industrial Districts, A. In the industrial districts, new buildings and structures may be constructed and used and existing buildings and structures may be altered, enlarged, reconstructed and used for -6 d 1, Any purpose or accessory use authorized in -the single residence, . apartment house, semi-residence, or business districts; 2. Any industry, trade, manufacturing, commercial, or other purpose not otherwise prohibited by this section or by any law or ordinance, B. No new building or structure, or part thereof, shall be constructed or used, and no existing building or structure, or part thereof, shall, be altered, enlarged, reconstructed, or used for any of the following specified uses, unless such use is accessory and incidental to a minor extent to a use authorized by this sections 1. Acetylene gas manufacturing; 2. Ammonia, bleaching powder, or chlorine manufacturing; 3. Asphalt manufacturing or refining; 4. Assaying, other than gold and silver; 5. Blast furnace; 6. Boiler making; 7. Cement, lime or plaster of Paris manufacturing; i 8. Coal tar products manufacturing; 9. Coke manufacturing; 10. Cork manufacturing; 11. Cremation, except in a cemetery; 12. Creosote treatment or manufacturing; 13, .Dextrine, glucose, or starch manufacturing; 14. Disinfectant, insecticide or poison manufacturing; 15. Distillation of bones, coal, or wood; 16. Emery cloth or sandpaper manufacturing; 17. Explosives, fireworks, or gunpowder manufacturing; 18. Fat rendering; l �7 19.. Fertilizer manufacturing; • 20. Fish packing or storage; 21. Gasoline, naptha, or petroleum refining; . 22. Gelatine, glue, or sizing manufacturing; 23. Grease, lard, or tallow manufacturing; 24. Hydrochloric, nitric, picric, sulphuric, or sulphurous acid manufacturing; 25. Incineration or reduction of dead animals, garbage; offal, or refuse, except in a municipal plant; 26. Lampblack manufacturing; 27. Linoleum or oilcloth manufacturing; 28. Match manufacturing; 29. Ore reduction; 30. Potash refining; k 31. _Printing ink manufacturing; 32. Pyroxylin plastic manufacturing; 33. Rolling mill; 34. Salt manufacturing; 35. Shoe blacking, cleaner, or polish manufacturing; 36. Slaughtering of animals or fowls, except on premises used for farming, or in the case of fowls to be sold at retail an the premises; . 37. Smelting of iron; 38. Soda and soda compounds manufacturing; 39. Stockyards; 40. Stove blacking or polish manufacturing; 41. Sugar refining; 42. Tar distillation or manufacturing; 43. Tobacco (chewing) manufacturing; 44. Yeast .manufacturing; 45, Any use which would be injurious, obnoxious, or offensive to a 'neighborhood, by reason of noise, vibration, smoke, cinders, ' odor, gas, fumes, dust, chemicals, or other objectionable feature, or dangerous to a neighborhood through fire, explosion, or any other cause Section 8. Unrestricted Districts, In the unrestricted districts, new buildings. -and structures may be constructed and used and existing buildings may be altered, enlarged, reconstructed, and used for any purpose or accessory use not otherwise prohibited by law or ordinance,' Section 9. Non-conforming Buildings, Structures, and Uses. This ordinance shall not apply to existing buildings or structures nor to the existing use of any building or structure, but it shall apply to any alteration of a building or structure, to provide for a purpose, or in a manner, substantially different from the use to which it was put before the alteration. Section 10. Public Service Corporations, A building used or to be used-by a public service corporation shall be exempted from the provisions of this - ordinance as to its situation if, upon a petition of the corporation, the Department of Public Utilities shall, after a public hearing, decide that the present or proposed situation of the building in question is reasonably necessary for the convenience or welfare of the public, . Section 11. District Boundaries. The location of the boundary lines shown upon the zoning map which accompanies and is a part of this ordinance shall be determined as follows; 1. Where the boundary lines are shown upon the map within the street lines of public or private streets or ways, the center lines of such streets -9- or ways shall be the boundary lines. 2. Where the boundary lines are shown approximately on the location of • property or lot lines, and the exact location of such boundary .lines is not indicated by means of figures, distances, or otherwise, then the property or lot lines shall be the boundary lines. 3. Boundary lines located outside of street lines and shown approximately parallel thereto, shallberegarded as parallel to such street lines; and figures placed upon the map between such boundary lines and the street . lines shall be the distances in feet of such boundary lines from the street lines, such distances being measured at right angles to the street lines unless otherwise indicated. 4, In all cases which are not covered by the provisions of this section, the location of boundary lines shall be determined by the distances in fact, if given, from the other lines upon the map, or, if distances are not given, then by the scale of the map. 5. Wherever any uncertainty exists as ,to .the exact location of a boundary line, the location of such line shall be determined by the Inspector of Buildings. Section 12. Definitions. The following terms, when used in the ordinance, shall have the meanings respectively given the 1. Private Garage: A privategarageis a building or structure, or part thereof, in which one or more motor vehicles, belonging to not more than two persons, one of whom at least is the owner or a tenant of the premises one of which motor vehicles may be a commercial vehicle of not more than one and one-half tons weight or capacity, are kept solely for the private or professional use of their owner, and in which garage no space is rented out for a commercial vehicle nor to more than one person other than the owner or a tenant of- the premises. _10- 2. Private Stable: A private stable is a building or structure, or part thereof, in which one or more horses, belonging to not more than two persons, one of whom at least is the owner or a tenant of the premises, are kept solely for the private or professional use of their owner,. and in which stable no space is rented out to more than one person other than the owner or a tenant of the premises 3. Group Garage: A group garage is a building or structure, or part _ thereof, other than a private garage, or a group of private garages or other buildings, or structures, in which motor vehicles are stored and taken care of.by their respective owners, who are either owners: or tenants of the space in which their motor vehicles are stored, all of which motor vehicles being solely for the private or professional use of their owners, no person storing more than one commercial vehicle in the space which he owns or. rents, nor a commercial vehicle of more than one and one-half tons weight or capacity, nor one owned by anyone except himself. 4. Business Garage: A business garage is a building or structure, or part thereof, in which one or more motor vehicles belonging to-the owner or a tenant of the premises, are kept for the use of such owner or tenant, for the carrying of loads other than passengers for profit, for any work in connection with the business of the owner of such motor vehicles, which may be kept for sale, for exhibition or demonstration purposes, but not for hire. A Sales- room or showroom for motor vehicles in which any vehicle is kept with gasoline in its tank, shall be regarded as a business garage, and also any building in which motor vehicles are kept in dead storage for profit. -11- 5. Business Stable: A business stable is a building or structure, or part thereof, in which one or more horses, belonging to the owner or a tenant of the premises, are kept for the use of such owner or tenant, for the carrying of loads other than passengers for profit, for any work in connection with the business of the owner of such horses, which may be kept for sale, but not for hire. 6. Public Garage: A public garage is any building or structure, or part thereof, in which motor vehicles are kept in live storage for profit, for the carrying of passengers for profit, for hire, or for - any other purpose not included in the definition of a private garage, . group garage, or business garage. 7. Public Stable: A public stable is any building or structure, or part thereof, in which horses are kept for profit, for the carrying of passengers for profit, for hire, or for any other purpose not included in the definition of a private stable or a business, stable. 8. Gasoline Filling Station: A gasoline filling station is a building or structure, or part thereof, used in connection with tanks, pumps, and other appliances, for supplying motor vehicles with gasoline, compressed air, oil, water, and similar supplies, for profit, but not for the. purpose of making repairs. 9. Service Station: A service station is a building or structure, or part thereof, used for supplying accessories to or parts of motor vehicles for profit, with facilities for making minor changes and adjustments to motor vehicles, but not structural changes or repairs, nor doing work involving the use of machinery. 10. Garage Repair Shop: A garage repair shop is a part of a public garage where only minor structural repairs are made to motor -12- vehicles for profit, by means of lathes, vises, hand or foot •t operated machinery, and other appliances, but not by means of heavy machinery, 11. Motor Vehicle Repair Shop: A motor vehicle repair shop is a building or- structure, or part thereof, in which major structural repairs are made to motor vehicles, or a repair shop in a garage or other building or structure in which. heavy machinery is used. An. automobile school shall be regarded as a 6lotor vehicle repair . shop. - 12, Non-Conforming Building or.Structure: A non-conforming building or structure is a building or structure, the use of which, in whole or in part, does not conform to the use regulations of the district in which the building or structure is located. 13. Non-Conforming Use: A non-conforming use is a use in any building or structure which does not conform to the use regulations of .the district in which such use exists. Section 13. Execution. The Inspector of Buildings shall execute the provisions of this ordinance, except when otherwise provided, and, in so doing, shall have the same powers. as are provided for the execution of the Building Ordinance, He-shall issue no permit for the construction, alteration, enlargement, reconstruction, moving, raising up, or use of any building or structure, or part thereof, which would be in violation of any of the provisions of this ordinance. Section 14, Board of Appeal, A. Any person aggrieved by the refusal of the Inspector of Buildings • to issue a permit on account of the provisions of this ordinance, or any person who is aggrieved by the issuance of a permit or by -13- j , any decision, ruling, or order of the Inspector of Buildings, may appeal to the Board of Appeal within ten days from the date of the action appealed from, by giving notice in writing of the appeal to the Inspector of Buildings and the Board of Appeal. -After -notice given to such persons as the Board shall order, a hearing shall be held, and the Board shall affirm, annul, or modify such refusal, , decision, ruling, or order, of the Inspector of Buildings. B. The Board of Appeal may vary the application of this ordinance in specific cases where its enforcement would involve practical difficulty or unnecessary hardship and wherein desirable relief may be granted without substantially derogating from the intent and purpose of the ordinance, but not otherwise. No such variance shall be authorized except by the unanimous decision of the entire • membership of the Board, rendered upon a written petition addressed to the Board and after a public hearing thereon, of all property deemed by the Board to be affected thereby as they appear on the most recent tax list, and also advertised in a newspaper published in the . City of Salem. The Board shall cause to be made a detailed record of all its proceedings relative to such petition, which record shall, , be filed in the office of the City Clerk and shall be open-to public inspection, and notice of such decision shall be mailed to each. party in interest as aforesaid. The Board of Appeal may permit -in a single residence district under the provisions of this paragraph, the alteration, .enlargement, reconstruction, and use of a single family house, existing at the time this ordinance takes effect, as a residence • for not more than two families, provided that the Board finds that the original building can no longer be used at a reasonable expense or at a fair -14- financial return for a use permitted in the district. The Board may also permit in a semi-residence or business district the use i iof a larger floor area for manufacturing than three thousand square feet, provided that the Board finds that deprivation of such larger area would involve .practical difficulty, or unnecessary hardship, and that the larger area would not substantially reduce the value of any property within the district nor otherwise be injurious, obnoxious, or offensive to the neighborhood; Section 15. Repeal or Modification. This ordinance, with all amendments thereto, together with the boundary lines of the districts and the zoning map, shall not be repealed or modified except after reasonable notice of the proposed repeal or modification and an opportunity to the objectors to be heard thereon, and in no case except by a three-fourths vote of the City Council. Section 16. Existing Ordinances Not Repealed. Nothing contained in this ordinance shall be construed as repealing or modifying any existing ordinance or regulation of the city, but shall be in addition thereto; provided that, whenever this ordinance imposes greater restrictions upon the construction, alteration, enlargement, reconstruction, moving, rising up, or use of buildings or structures than other ordinances or provisions of law, such greater restrictions shall prevail, - Section 17. Invalidity. The invalidity of any section or provision of this ordinance, or of any district or part thereof as laid down upon the zoning map, shall not affect the validity of any other section ,or provision of the ordinance, or of any other district or part thereof, as laid down upon the zoning map. Section 18. This Ordinance shall take effect on January 1, 1926. In City Council September .24, 1925 John J. Connelly, City Clerk Adopted for first passage In City Council November 2, 1925 Adopted as amended for second and final passage Approved by the Mayor on November 10, 1925 !0 7 or,I Yu fxz DI • in City: Council, �tt7oer 244- -d ,4 Et.. i0'l p,tb y Cl�rI o_epp..u-�.�zx.axC� C'L�)�,.o ,•E, +��s :.s Qna(A 4j,.•a/ii.R.4 fq�J�.'• _.I - In. City Council, IT 2, 1925.. eta'. O i Oa" ' -p-i$"d t0 b- `•_I O t,,-q _ . Recon6i de at CGLftI' 117. t C t• Clerk i y r "1 � 67. ------ - .. � j>fa;or I r . 0 CITY OF SALEM - MASSACHUSETTS ROBERT A. LEDOUX Legal Department LEONARD F. FEMINO City Solicitor 93 Washington Street Assistant city solicitor 508&7453353 Salem, Massachusetts 01970 50B.M.19M April 10, 1996 Leo Tremblay, Building Inspector One Salem Green Salem, Massachusetts 01970 RE: 376 Essex Street Salem, Massachusetts Dear Mr. Tremblay: I have sent previous communication to you in,connection:with the above- captioned. As .you probably remember, I indicated that the use-of the property as a dwelling and medical offices was a.grandfathered non-conforming use, having been established as early as 1941 by Dr. John Cunney. We have gone through two evenings of hearings before the Board of Appeals and as you know, the vote was three to two to revoke the building permit that you had issued. Inasmuch as to succeed you need a vote of at least four members of the committee, the building permit stands. You and I have spoken on two or three occasions in connection with this property and, as I stated to you, I am troubled by some of the evidence that was brought forth before the Board of Appeals. Dr. Cunney lived in this house with his family and maintained his medical offices. He had only one employee during the time that he was in practice at 376 Essex Street. There was evidence introduced at the Board of Appeals hearing that indicated that the physician who was establishing residency in this.property expected to have anywhere from three to five employees: That being the case, it would be my opinion that this is a substantial extension of the non-conformity and as such would require approval by the Board of Appeals in the form of a special permit. Leo Tremblay, Building Inspector April 10, 1996 Page Two I would be happy to speak to you in connection with the same. Thank you for your consideration. Very truly yours, ROBERT A. LEDOUX RAL/lcm hiM 5 '' ,� ? �iublic �ruper#� �e�Zttr#tnett# ''' � �Iui(ling �epttrtntent One ``atrm (6jrrrn 74 5-02 13 William H. Munroe - Director of Public Property Maurice M. Martineau, Ass't Inspector Inspector of Buildings Edgar J. Paquin, Ass't Inspector Zoning Enforcement Officer John L. LeClere, Plumbing/Gas Insp. September 2 , 1987 a'v Paula Gauthier 172 Lafayette ST . P . 0 Box 1049 Salem,MA 01970 RE : 376 Essex Street , Salem,MA Dear Miss Gauthier , After our investigation into the property located at 376 Essex Street , we have concluded that it is in a residential neighborhood (R-2) being used as a mixed use . 1 . Residential 2 . Professional Office We have also concluded that the building may have been used in this manner since 1962 , according to Polk ' s Directory. 1986 - Eric J Reiner , Physcian - 744-0806 Mrs . Sandra J Reiner ` 1966 - John V Cunney , Physcian - 744-0806 1962 - John V Cunney , Physcian P14-6222 However , for us to established that this building is a legal mixed use we need : I . Signed affidavit from previous owners of the building if possible . 2 . Documents showing the subject property , being used as an office , such as doctor ' s receipts , prior to restrictive Zoning . 3 . That the use of the building as an office has not been abandoned Sincerely, David Harris Assistant Building Inspector DH/eaf 10/17/95 TUE 15:57 FAX 508 741 4685 SERAFINI&DARLING [in 002 BOARD OF ASSESSORS Y S 93 WASHINGTON STREET,CITY HALL,SALEM.MASSACHUSETTS 01970-3595 (508)745.9595 Ext.261 (508)744.2069 Fax October 5, 1995 Atty.John R.Serafini Sr. 63 Federal Street Salem MA 01970 Re: 0376 Essex Street(Assessors Parcel 425-0207) Dear John: The Board has reviewed its records regarding the above property and has found that upon inspection of the property by the Board on May 8, 1973,the property was at that time found to be partially used for commercial purposes,namely a doctor's office. It was estimated at that time that approximately fifty percent of the living area in the property was being so used. Please feel free to contact me if I can be of any further assistance in this matter. —Veryftul3'� > Peter M.Caron Chairman SERAFINI, SERAFINI AND DARLING ATTORNEYS AT LAW 63 FEDERAL STREET SALEM, MASSACHUSETTS01970 JOHN R. SERAFINI, SR. TELEPHONE JOHN R. SERAFINI,JR. 506-744-0212 JOHN E. DARLING 617-561-2743 ELLEN M. , COR ER October 16 1995 TELECO PIER JOSEPH C. CORRENTI 508-741-4663 Leo E. Tremblay Inspector of Buildings City of Salem One Salem Green Salem, MA 01970 RE: 376 Essex Street Dear Mr. Tremblay: The property at 376 Essex Street has recently been sold and is presently under minor interior renovation and updating, for which the proper permit has been issued, in preparation for occupancy as physicians' offices and a residential use. The property is a nonconforming use in the present R-2 zone. During the past fifty (50) plus years the property has been an uninterrupted mixed use, consisting of physicians' offices and residential use. This mixed use will continue and remain unchanged with the new owner. During the renovation, a few neighbors have inquired as to the future use of the property, while insisting that provisions of the current Zoning Ordinance concerning professional offices apply to this property. The current Zoning Ordinance does not apply to the existing mixed use, which is a "grandfathered" use pre-dating the Ordinance. There has been an unbroken string of physicians ' offices and residential use at the property since the early 19401s. Additionally, attached please find a letter from the City of Salem Board of Assessors which confirms that according to its earliest records, i.e. May 1973 , that approximately fifty percent (50%) of the property was being used as a doctor's office. In conclusion, the use which is "grandfathered" is not restricted by the current Ordinance, nor has it been altered or broken for a period of more than two years. V ry truly yours, � "Lill JO PH C. CORRENTI JCC/ln STRAUB & MEYERS Attorneys at Law 70 Washington Street Suite 318 Salem, Massachusetts 01970-3520 Neila J. Straub, Esq. (508)745-7710 Sharon D. Meyers,Esq. (617)581-8005 John D. Keenan, Esq. - (508)740-6766 Mark B. Lyons, Esq., of Counsel James L. Rogal, Esq., of Counsel Fax(508)745-8110 October 16, 1995 HAND DELIVERED Leo Trembley Building Inspector City of Salem One Salem Green Salem, MA 01970 Re: 376 Essex Street, Salem. Massachusetts Dear Mr. Trembley: Pursuant to the Salem Zoning Ordinances, Article IX, §9-2 (a), let this letter serve as written notice that the members of the Essex Street Neighborhood Homeowners Association, consisting of the people listed in Exhibit A, attached hereto, are filing a written complaint concerning the interior renovation work presently being undertaken at 376 Essex Street, Salem, Massachusetts. The abutters and other neighbors believe that there is violation of the Salem Zoning Ordinances, as it appears that the use of the property is about to be dramatically changed, that the parking is insufficient for the planned changed, and that there appears to be an alternation to the exterior of the house which has not been approved by the Salem Historic Commission. The abutters and other neighbors have reason to believe that Dr. Beverly Shafer, an associate of Dr. Shafer's and a surgeon intend to occupy the premises of 376 Essex Street providing medical services in a clinic setting. There is no intent by Dr. Shafer, or any other physician to occupy the dwelling as principle residence, changing the essential character of the property without a variance being obtained and a proper public hearing having been held. Until such time as the use of the property is established, the Essex Street Neighborhood Homeowners Association requests that you issue a cease and desist order. Should you wish to discuss this with me further, I may be reached at the above telephone number. Very Truly �Yours, � Sharon D. Meyers, E*re r, e OMINg CITY OF SALEM - MASSACHUSETTS ROBERT A. LEDOUX Legal Department LEONARD F. FEMINO City Solicitor 93 Washington Street Assistant city solicitor 508-7453M .Salem, Massachusetts 01970 508&921.19W December 8, 1995 Mr. Leo E . Tremblay Zoning Enforcement Officer Building Department One Salem Green Salem, Massachusetts 01970 RE: 376 Essex Street Dear Mr. Tremblay: By letter dated November 21, 1995, you requested my legal opinion as to the use of the property located at 376 Essex Street. My opinion follows . In order to understand the problem that we have today, it is necessary to review some of the history of this property, as well as the history of zoning in Salem. The City of Salem adopted zoning in 1925 . At that time the zoning by-law allowed accessory uses that were customary in connection with the principal uses as listed in the by-law. One of those used listed was hospital, sanitarium, and other medical institutions . This is what is perceived to be the justification for Dr. Cunney using the house at 376 Essex Street as a medical office from 1941 until 1955 . There was a change in the zoning in 1955 in which an apartment house district was established (the district in which this building is located) . The ordinance allowed in an apartment house district, an office or studio of a physician or surgeon, . . . . . . , located in his or her private residence. Dr. John V. Cunney, as mentioned earlier, purchased the property in question in 1941 . From 1941 until 1981, Dr. Cunney used the property as his private residence and his office as a physician. Mr. Leo E. Tremblay Page Two December 8, 1995 By the changes under the zoning by-law of 1955, the use by Dr. Cunney of the property in question became a lawful use and therefore lost its non-conforming status . In 1965 the zoning in the City of Salem once again changed and the use of offices or other home occupations in a dwelling became a special permit use under the provisions of §5B1 of the zoning by- law. Inasmuch as the prior use of the property by Dr. Cunney was a valid, legal use in accordance with the 1955 statute, the 1965 change made the use of 376 Essex Street a non-conforming use as a doctor's office within his or her private residence. As I understand it, the property in question was sold in 1981 to Drs . Reynes who were both physicians . I further understand that this was their private residence and they used the property as their office. The property again was sold in 1988 to a Dr. Kirsch and his wife, who was either a psychologist, as I understand it, or a licensed social worker. They used the property in question as their office and private residence until the property was sold to Charter Trust. It seems clear that the non-conforming use as established as a result of the 1965 zoning by-law can continue on indefinitely into the future so long as the physician's office is maintained in his or her private residence. What appears to be the controlling case in this area is the case of Powers vs Building Inspector of Barnstable. 363 Mass 640A, 296 Northeast 2d 491 ( 1973 This case speaks at length about expansion of non-conforming uses . It does state that a non-conforming use of the premises may not only be continued, but also increased in volume in certain instances . We have been informed that Dr. Shafer has an associate physician who is employed by her and who will maintain part-time office hours . Inasmuch as 376 Essex Street in its continued use as a medical office is a grandfathered non-conforming use within that zone, this use is not governed by the 1965 ordinance which limits the number of non-resident employees and gross floor space used as offices . Mr. Leo E. Tremblay Page Three December 8, 1995 Having said all of the above, it is my opinion that Dr. Shafer may maintain her medical practice at 376 Essex Street so long as she maintains her private residence at the same address and may employ an associate physician in her practice at the same address . I would be happy to speak with you in connection with the same. Very trul y urs, —ew i� 17VA4 ROBERT A. LEDOUX RAL/leh IC`/31/85 WED 10:31 FAX 508 745 5708 HUNNEMAN SALEM 10 002 ( itLT of *alem, fiRSI UE#US'effs �u6lit �rupertg �e}rartmetrt - ~� Nuiihing bevartmecrt one lotto %"ea 5aa-745-9545 fsd. 380 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer February 13, 1995 To Whom it May Concern: RE: 376 Essex Street The legal use of the above mentioned property is a grandfathered mixed use, consisting of a physicians office and a residential unit. This use may legally continued until such time as the physicians office has been discontinued for a period of two (2) years or more at which time it would revert back to a dwelling unit in a R-2 zoning area. If this office can be of any further assistance please do not hesitate to call. Si7el Leo E. Tremblay Zoning Enforcement :ftcer LET: scm r _ Arco Y �5 P Cfitu of .� ;Utm tt sttt us�tto Public Propertp 13epartment Nuilbing tD. epartmcnt (9nr t;nirm 6rrrn 500-715-9595 Ext. 300 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer October 23 , 1995 Straub & Meyers 70 Washington Street Salem, Mass . 01970 RE : 376 Essex Street Dear Ms . Meyers : Let me begin by stating that a cease and desist work order can not be issued on speculations from neighbors who think the premises are going to be used illegally. Let me further assure you that the property will not be used illegally. A Certificate of Occupancy has not been issued, and must be issued before the premises can be occupied. The Certificate of Occupancy will clearly indicate that only one Doctors office and only one dwelling unit are legal on premises at 376 Essex Street. Until someone can overturn my decision on this matter by means of documentation, it will remain as such, or until the owners excersize their rights through the City of Salem Board of Appeals . The construction of the handi-cap ramp has been stopped until proper permission is obtained from the Historic Commission. This was an oversite by my department thinking that if the structure was not in view from the front of the property, (which we anticipated would not be seen when reviewing the drawings ) a Certificate of Appropriateness was not required, we have since learned that a Certificate is required whether it is seen or not . � 4 � If this office can be of any further assistance in this or any other matter please do not hesitate to call . Sincerely, Leo E . Tremblay Inspector of Buildings LET: scm cc: Robert Ledoux David Shea Councillor Harvey, Ward 2 1 SERAFINI, SERAFINI AND DARLING ATTORNEYS AT LAW 63 FEDERAL STREET SALEM. MASSACHUSETTS 01970 JOHN R. SERAFINI. SR. TELEPHONE JOHN R. SERAFINI.JR. 506744.0212 JOHN E. DARLING 617-581-2743 ELLEN M. WINKLER TELECO PIER JOSEPH C. CORRENTI 506-741-4663 November 20, 1995 IN HAND Leo E. Tremblay Zoning Enforcement Officer City of Salem One Salem Green Salem, Massachusetts 01970 RE: 376 Essex Street, Salem Dear Mr. Tremblay: Enclosed is a copy of a letter delivered to the Councillors this day and to the City Solicitor. Sincerely, t� )OHN R. SERAFINI, S JRS,SR. /ln enclosure SERAFINI, SERAFINI AND DARLING ATTORNEYS AT LAW 63 FEDERAL STREET SALEM. MASSACHUSETTS 01970 JOHN R. SERAFINI. SR, TELEPHONE JOHN R. SERAFINI.OR. 506-744-0212 JOHN E. DARLING 617-561-2743 ELLEN M.WINKLER TELECO PIER JOSEPH C CORRENTI 506.7444663 November 20, 1995 Councillor Dear Councillor I understand that there is still some confusion relative to the use regarding 376 Essex Street. I met with a representative group of neighbors together with their attorney on Friday night in an attempt to clarify the situation once and for all. You should be aware of the following. Dr. Beverly Shafer, a reconstructive and plastic surgeon, currently practices at 355 Essex Street, and is planning to move her office to. 376 Essex Street. Dr. Shafer has an associate surgeon in her practice who, while maintaining an office in Amesbury, sees patients in Salem one day per week. The premises at 376 Essex Street has a history of being occupied by physicians, commencing in the early 1940's and continuing uninterrupted to the present day. The private residence character of 376 Essex Street and the medical office use has been continuous for some fifty-five years. The private residence use will continue and two physicians will simply move their practice from the corner of Essex and Hamilton Streets to the building. Dr. Shafer has the premises under lease with an option to buy. North Shore Medical Center, in order to assist in financing, had acquired the property on Dr. Shafer's behalf. As soon as her option is exercised, she will become the owner. The nature of the practice of Dr. Shafer and her associate is much less intense than the general practices that existed in this building before the present contemplated use. There will be no evening hours, nor Saturday or Sunday hours. Again, it is contemplated that patients will only be seen at the premises three days per week. Because both physicians are surgeons, their day begins many times at 6:00 A.M. , and, generally, they will be in surgery three days a week. The contemplated medical office use is in virtually every respect, less intense than what it has been in the past. Councillor November 20, 1995 Page 2 It is unclear as to why certain people in the neighborhood have undertaken to categorize uses on this property without bothering to find out the actual facts. Property owners are entitled, whether they are institutions or individuals, to rely on existing uses and zoning. Building permits are issued when plans comply with existing State Building Code and other zoning requirements. It is important for everyone that this procedure be recognized. Interference with the procedure that is required by law to be followed by any property owner would unnecessarily create confusion. I hope that the Council clearly understands that the contemplated use of this property will be a private residence together with Dr. Shafer's office. Sincerely, JOHN R. SERAFINI, SR. Attorney for North Shore Medical Center JRS,SR./ln ff�64& 610- Ok-4 64, 9&9 November 13, 1995 Leo Tremblay Building Inspector City of Salem Salem, Ma. 01970 Dear Mr. Tremblay: You are respectfully requested to appear before the Salem City Council Committee on Community and Economic Development on Monday, November 20, 1995 at 6:00 P. M. in the Council Chamber regarding the enclosed. Very truly yours, c/ DE RAHK S�3 CITY CLERK Enclosure ( 1) ,COPll11T CITY OF SALEM ri �J 'Y„a3eY In City Council, November 9, 1995 Ordered: That the matter of 376 Essex Street be taken up by the Committee on Community and Economic Development to be discussed at a meeting of which the following are to be invited. City Solicitor Building Inspector Mayor Historic Commission Representative of the Neighborhood .Association (John Casey) In City Council November 9, 1995 Adopted ATTEST: DEBORAH E. BURKINSHAW CITY CLERK of '*tt1Em, mussttr4usetts rubli� � Papertp Department +Nuilbing Department (One Salem (6reen 508-745-9595 Ext. 380 Leo E. Tremblav Director of Public Property Inspector of Building Zoning Enforcement Officer November 9 , 1995 Joseph Correnti 63 Federal Street Salem, Mass . 01970 RE: 376 Essex Street Dear Mr. Correnti : Per your request, pursuant to the regulation of the Architectural Access Board, 521 CMR, handicapped access is required for the above mentioned property. The plans submitted which detail a ramp at the rear exit meet these regulations for access . This handicapped access is required regardless of whether one or more doctors occupy this space, according to Article 3 , of Chapter 521 CMR of the Architectural Barriers Board. If this office can be of any further assistance in this or any other matter, please do not hesitate to call . Sincerely, G- ✓'rtGrf r�Y�Y Leo E . Tremblay : // Inspector of Buildings LET: scm cc: David Shea (situ of I$ttlem, massar4usett,s Public Prnpertg 19epnrtment lguilbing i9epartment (ane ftlem Green 500-745-9595 fid. 300 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer February 13, 1995 To Whom it May Concern: RE: 376 Essex Street The legal use of the above mentioned property is a grandfathered mixed use, consisting of a physicians office and a residential unit. This use may legally continued until such time as the physicians office has been discontinued for a period of two (2) years or more at which time it would revert back to a dwelling unit in a R-2 zoning area. If this office can be of any further assistance please do not hesitate to call. Sincerely, Leo E. Tremblay Zoning Enforcement Of cer LET: scm ADMINISTRATION AND ENFORCEMENT SECTION 119.0 CERTIFICATE OF USE AND'OCCUPANCY 119.1 New buildings and structures: A building or structure hereafter shall not be used or occupied in whole or in part until the certificate of use and occupancy shall have been issued by the building commissioner or inspector of buildings or, when applicable, the state inspector. The certificate shall not be issued until all the work has been completed in accordance with the provisions of the approved permits and of the applicable codes for which a permit is required, except as provided in Section 119.4. Prior to the issuance of the certificate of use and occupancy, the building commissioner or inspector of buildings shall cause a written request to be transmitted to the head of the fire department concerning the issuance of the certificate with regard to items in Section 1000.1.1 of this code. Within three (3) working days of receipt of the request the head of the fire department shall indicate concurrence with the issuance of said certificate or non-concurrence with specific reasons therefor which relate to the items listed in said Section 1000.1.1. Should no response to the inquiry be received by the building commissioner or inspector of buildings within five (5) working days, the building commissioner or inspector of buildings shall deem concurrence by the head of the fire department. 119.2 Buildings or structures hereafter altered: A building or structure, in whole or in part, altered to change from one use group to another; to a different use within the same use group; the fire grading; the maximum live load capacity; the occupancy load capacity; or a building or structure hereafter altered for which a certificate of use and occupancy has not been heretofore issued, shall not be occupied or used until the certificate shall have been issued certifying that the work has been completed in accordance with the provisions of the approved permits and of the applicable codes for which a permit is required. Any use or occupancy, which was not discontinued during the work of alteration, shall be discontinued within thirty (30) days after the completion of the alteration unless the required certificate is issued. 119.3 Existing buildings or structures: If a certificate of use and occupancy has not been issued, upon written request from the owner of an existing building ori �st.ricture, a certificate of use and occupancy shall be issuedrpprovided there are no (solations of law or orders of the building official pending, and it is established after inspeaon and investigation that the alleged use of the building or structure has heretofore existed._Nothing in this code shall require the removal; alteration or _- _`] abandonment of, or prevent the continuance of the use and occupancy of a lawfully existing building or structure, unless such use is deemed to endanger public safety and welfare. 780 CMR - Fifth Edition 1-21 NONCONFORMM SALEM ZONING ORDINANCE Art.VIII, § 85 i of the lots do not meet the requirements for increased in height, except as provided for lot width and area as established by this in section 8-6. However, if such structure ordinance, the lands involved shall be con- used for single- or two-family residential sidered to be an undivided parcel for the purposes can be enlarged or altered in con. purpose of this ordinance, and no portion of formity with the lot coverage, front yard, said parcel shall be used or sold which does i side yard, rear yard and distance require- not meet lot width and area requirements ments of Table I of Article VI, said enlarge- established by this ordinance, nor shall any ment or alteration shall not be deemed an division of the parcel be made which leaves increase in the nonconformity of the strut- remaining any lot with width or area below I ture and permissible even though the lot the requirements stated in this ordinance. area and lot width are noncon 11 Sec. 8.3. Nonconforming use of land. (2) hou such structure be destroyed by any means to an extent of more than fifty (50) Where use of land exists that is made no longer percent of its replacement cost or more than permissible under the terms of this ordinance or fifty(50)percent of its floor area at the time amendment,such use may be continued so long as of destruction, it shall not be reconstructed it remains otherwise lawful, subject to the fol- except in conformity with the provisions of lowing provisions: , this ordinance. (1) Such nonconforming use shall not be en- (3) Should such structure be moved for any larged, increased or extended to occupy a reason for any distance whatsoever,it shall greater area of land than was occupied at thereafter conform to the regulations for the effective date of adoption or amend- the district in which it is located after it is ment of this ordinance. moved. (2) No such nonconforming use shall be moved in whole or in part to any other portion of Sec..8-5. Nonconforming use of structure. the lot or parcel occupied by such use at the If a use of a structure or a structure and pre- effective date of adoption or amendment of mises in combination exists that would not be al- this ordinance. lowed in the district under the terms of this ordi- (3) If any such nonconforming use of land is nance or amendment, the use may be continued discontinued for any reason for a period of so long as it remains otherwise lawful, subject to twelve (12) consecutive months, any subse- the following provisions: quent use of such land shall conform to the (1) No existing structure devoted to a use not regulations specified by this ordinance for permitted by this ordinance in the district the district in which such land is located. in which it is located shall be enlarged, ex- tended, constructed, reconstructed, moved Sec. 8.4. Nonconforming structure. or structurally altered, except in changing Where a structure exists which could not be the use of the structure to a use permitted built under the terms of this ordinance by reason in the district in which it is located. of restrictions on area, lot coverage, height, yard i(2))-'Any nonconforming use may be extended dimensions, or other characteristics of the strut- throughout any parts of a building which t ture or its location on the lot, such structure may ere manifestly arranged or designed for t be continued so long as it remains otherwise such use at the time of adoption or amend- lawful, subject to the following provisions: ment of this ordinance,but no such use shall (1) No such structure may be enlarged or al- be extended to occupy any land outside such tered in a way which increases its noncon- f building. formity, except as provided for in section (3) On any building devoted in whole or in part 8-6. In addition, such structure may not be to any nonconforming use, work may be 51 r 1 i Art.VIII. § 8.5 SALEM ZONING ORDINANCE NONCONFORMITY done in any period of twelve (12) consecu- tive months on ordinary repairs, or on re- Ppair or replacement of nonbearing walls, fixtures, wiring or plumbing to an extent not exceeding ten (10) percent of the cur- rent replacement value of the building,pro- vided the cubic content of the building as it existed at the time of passage or amend- ment of this ordinance shall not be in- creased. f (4) If no structural alterations are madeyany nonconforming use of a structure or struc- ture and premises may be changed to an- other nonconforming use,provided that the board of appeals, either by general rule or by making findings in the specific case, shall find that the proposed use is equally appropriate or more appropriate to the dis- trict than the existing nonconforming use. In permitting such change, the board of ap- peals may require appropriate conditions and safeguards in accord with the provi- sions of this ordinance. (5) Any structure or structure and land in com- bination in or on which a nonconforming use is superseded by a permitted use shall thereafter conform to the regulations for the district in which such structure is lo- cated, and the nonconforming use may not thereafter be resumed. (6) Any nonconforming use of land or struc- ture and any nonconforming structure shall lose whatever rights might otherwise exist to its continuation under this section if said use or structure shall be abandoned or not used for a period of two (2) years or more. Sec. 8.6. Board of appeals; granting special i permits. Notwithstanding anything to the contrary ap- pearing in this ordinance, the board of appeals may grant special permits as authorized by sec- tion 5-30) and section 9-4 herein when the same may be granted without substantial detriment to j the public good and without nullifying or substan- tially derogating from the intent and purpose of this ordinance. I 52 i Titu of 1--lihiem, 14fittssar4usetts Publir PropertU Department 1�d.uilbing Department (One dalem Green 5110-745-9595 Ext. 380 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer November 21 , 1995 Joseph Correnti 63 Federal Street Salem, Mass . 01970 ' RE : 376 Essex Street Dear Attorney Correnti : I have received your letter and additional material concerning 376 Essex Street and must inform you that I have requested from the City of Salem Solicitor a legal opinion. Until I have received such, I feel under the circumstances that I can not issued an occupancy permit for the use of the property for a dwelling unit and two doctors at this time , or until I have a legal interperta -tion of the City of Salem Zoning Ordinances that apply to this property by the City of Salem Solicitor . Sincerely, Leo E . Tremblay Zoning Enforcement Officer LET: scm CC : Robert LeDoux David Shea Councillor Harvey Councillor Stirgwolt Stephen Touchette Len Femino MEMORANDUM OF CHARTER TRUST IN RE: 376 ESSEX STREET INCREASE IN DEGREE OF NONCONFORMING USE SUMMARY A nonconforming use is not enlarged or extended although the number of employees has almost doubled. 101 C.J.S. Zoning 5193 A nonconforming use which began as a one or two man operation and substantially expanded in volume, intensity and manpower was not a change in use. Union Ouarries, Inc. 478 P.2d 181 An increase from six to ten employees was permitted and did not alter the nonconforming status of the use. In Re Associated Contractors, 138 A.2d 99 A professional office use grants the right to employ personnel and facilities reasonably necessary to conduct such profession. Framingham Clinic, 382 Mass. 283 A change in the degree of a nonconforming use by increased volume, merchandise, traffic and hours of operation is not a change in the quality or character of use and is therefore allowed. Powers, infra. DISCUSSION Zoning law in Massachusetts and several other jurisdictions throughout the country stands for the proposition that a nonconforming use may not only be continued but also increased in volume, scope and intensity without abandoning its nonconforming status. Several of the cases, including the Powers case, are cited in the previously submitted Brief of Charter Trust. In focusing on the issue of an increase in the number of employees, the cases and commentators agree that such an increase is considered as part of the allowable increase in volume, scope and intensity of a nonconforming use. In other words, if the increase in volume, scope or intensity of a nonconforming use is a natural growth of a business, then adding employees to handle such increased use is also permissible. In the renowned legal encyclopedia Cornus Juris Secundum, 101, C.J.S. Zoning §193 , pp. 955-956, we find this elaboration: Generally speaking, the rule forbidding the enlargement or extension of a nonconforming use does not prevent an 1 r1% ' increase in the amount of use . . . so that a nonconforming use may be not only continued but also increased in volume and intensity. A nonconforming use is not limited to the precise magnitude thereof which existed at the date of the ordinance, but may be increased by natural expansion, and a nonconforming use is not unlawfully enlarged or extended although the number of employees has almost doubled. The natural growth of a business or an increase in the amount of business done is not a change from the nonconforming use permitted by the zoning ordinance. To argue that the volume, scope and intensity of a nonconforming use may be increased but that there may be no addition of employees is inconsistent and against the overwhelming body of law. In the Massachusetts case of Framingham Clinic v. ZBA of Framingham, the Massachusetts Supreme Judicial Court ruled that "absent some express limitation, the right to employ personnel and facilities reasonably necessary to a particular professional use is implicit in the authorization to establish a professional office. Any other construction would ' [destroy] the privilege given in that it would permit [the professional] to have an office but deny him, for all practical purposes, the privilege of using it. "' 382 Mass. 283, 293 . It is important to remember that in the Salem Zoning Ordinance prior to 1965 there were no restrictions on the number of non-resident employees or on the gross floor area dedicated to office use. There have been cases in other jurisdictions which have also decided the issue of an increase in employees in nonconforming uses. The Supreme Court of Kansas, in the case of Union Ouarries Inc. v. The Board of County Commissioners of Johnson County and the ZBA of Aubry Township 478 P. 2d 181, held that the nonconforming use, which began as a one or two man operation and subsequently was expanded in volume, intensity and manpower substantially beyond the initial operation, was not a change in use and that such expansion fell within the general rules of allowing expansion and enlargements of nonconforming uses. The Pennsylvania Supreme Court, in upholding the longstanding zoning case law or nonconforming uses, specifically addressed the issue of an increase in number of employees in a nonconforming use and held as follows: The appellant argues that if the requested [building] permit is allowed, the appellees will be in position to 2 employ ten persons instead of the six now on staff. But if the nonconforming use was admitted and accepted, which it was, and if normal expansion is recognized in the law, which it is, it is difficult to see where the controlling principle in the case changes anywhere along the line between six employees and ten employees. The Court ruled that an increase from six to ten employees was permitted and did not alter the nonconforming status of the use. In Re Associated Contractors, 138 A.2d. 99. Finally, the controlling Massachusetts case on the expansion or enlargement of nonconforming uses, the Powers case, addresses this circumstance. In the Powers case, the following expansion and enlargement of use occurred and the Supreme Judicial court ruled that, nevertheless, it did not amount to a change in use: 1. a substantial increase in the volume of the business conducted from the premises; 2. additional lines of merchandise added for sale from the premises; 3 . increase in manufacturing of products on the premises; 4. increase in volume of merchandise shipped out of premises by parcel post and truck; 5. manufacturing operations on the premises extended beyond daylight into evening hours; 6. retail sale business at the premises operated 7 days per week from morning until 9:00 or 10: 00 P.M. during summer months; 7. there was a large increase in traffic on the street where the premises was located; 8. there was a large increase in the number of persons stopping at the premises which was now open 7 days per week year round; 9. commercial buses began bringing groups to the premises and occasionally the buses would park with their motor running for more than a half hour. Powers at 659. The Powers Court found that despite the above listed changes, the use "represents a continuation" of the nonconforming use and that while there was a difference in degree of such use, there was no change in the quality or character of the use. 3 CONCLUSION Nonconforming uses are permitted to be enlarged or expanded as of right as long as they meet the three-prong Powers test. Such expansion or enlargement includes an increase in the number of employees. The facts and holdings of the Powers and Framingham Clinic cases, read in conjunction with case law from other jurisdictions as well as treatises on the subject, all clearly allow for an increase in the number of employees of a nonconforming use. Such an increase, under the Powers test, is one of degree but not of the cruality or character of the use, and therefore is allowed. Respectfully Submitted, THE CHARTER TRUST By Its Attorney, J"k J 6 (J)bHW R. SERAFINI, SR. OSEPH C. CORRENTI 1/memo.joe 4 SERAFINI, SERAFINI AND DARLING ATTORNEYS AT LAW 63 FEDERAL STREET SALEM. MASSACHUSETTS 01970 JOHN R. SERAFINI. SR. TELEPHONE JOHN R, SERAFINI.JR. 508-744-02t2 JOHN E. DARLING 617-581-2743 ELLEN M, WINKLER TELECOPIER JOSEPH C. CORRENTI 508-7414683 November 20, 1995 Leo E. Tremblay Zoning Enforcement Officer City of Salem One Salem Green Salem, Massachusetts 01970 RE: 376 Essex Street, Salem Dear Mr. Tremblay: Please be advised the this office represents the owner of the property located at 376 Essex Street (the "Premises") . I am in receipt of your letters dated February 13 , 1995 and October 23, 1995, copies of which are attached hereto for your convenience, concerning the proposed use for the Premises. we are in agreement with your statement that the legal use of the Premises is a "grandfathered mixed use of a physicians office and a residential unit" . Since approximately 1943 , the premises has continually maintained this mixed use. Dr. John Cunney first used the property in such manner until he sold it in 1981 to Dr. Reynes. Dr. Reynes maintained the mixed use until 1988 , at which time Dr. Kirsch purchased the property and continued the mixed use. This year Dr. Kirsch sold the property to the Trustee of the Charter Trust, my client, who proposes to lease the premises to Dr. Beverly Shafer for her practice and private residence, continuing the mixed use. Previously, I have provided to your office a copy of the above- referenced deed transactions for your file. In 1955, a revised Zoning Ordinance was passed in which the office of a physician or surgeon located in a private residence became an allowed use as of right (not a special permit use) in the Apartment House District in which 376 Essex Street was located. The current Zoning Ordinance, which became effective in 1965, made the professional office use a special permit use and set parameters on professional office use within a dwelling, such as restrictions on the number of non-resident employees and limitations as to gross floor space (twenty-five percent) which may be dedicated to office use. P Leo E. Tremblay November 20, 1995 Page 2 Clearly, these restrictions do not apply to the existing and proposed "grandfathered" use. It is exactly these changes as made in the 1965 Ordinance from which this use is "grandfathered" . PRIOR LEGAL USE A question has arisen as to whether the mixed use of the premises by Dr. Cunney during the 1940 's was a "legal" use prior to 1955. This question is particularly relevant as only a "lawful use . . . existing at the time of the adoption of the ordinance" may be continued or "grandfathered" . In 1941 and throughout the 1940 's and 1950 ' s, 376 Essex Street was located in the Apartment House District. The Apartment House District, pursuant to the 1925 Zoning Ordinance, section 4 , allowed the following uses as of right: 1 . Any purpose or accessory use authorized in the single or general residence districts; 2. Residence for three or more families, apartment house, apartment hotel or hotel; 3 . Such accessory uses as are customary in connection with the foregoing uses and are incidental thereto In 1944 the Ordinance was amended so as to add the words "lodging house" into paragraph 2 above after the words "apartment hotel" . Uses which were allowed in the "single residence district" , and thus the Apartment House District, during the 1940 's included the following in Section 2B: 1. Single family detached house; 2. Boarding or lodging houses; 8. Hospital, sanitarium or other medical institution: 10. Such accessory uses as are customary in connection with the foregoing uses and are incidental thereto Leo E. Tremblay November 20, 1995 Page 3 The premises at 376 Essex Street when purchased by Dr. John Cunney in 1941 and converted into a mixed use of doctors office/residential was a legal use at that time, as the doctors office was an accessory use incidental to the allowed use of "hospital and medical institution" . Certainly, since the premises could have been used as of right as a "hospital" , the use of a doctors office was allowed as an accessory and incidental use. In 1955, during the next major zoning revisions in the City, the "office of a physician or surgeon . . . located in his or her private residence" was ratified as an allowed use in the Single Residence and thus Apartment House District. Not until 1965 did this use become a Special Permit use and not a use as of right. Of course, Dr. Cunney and his successor were allowed to continue the medical office use at the premises, as a legal non-conforming use. Pursuant to G.L. c. 40A, S6, the use became "grandfathered" and thus, no zoning relief was necessary. It is this use which has continued unabated through 1995 and which is proposed to continue into the future. The law is clear on this point. Once a use is in compliance with the applicable zoning requirement, regardless of whether that use was previously noncomplying, the use becomes "grandfathered" as to all subsequently enacted zoning changes. Healy, Massachusetts Zoning Practice Under the Amended Zoning Enabling Act, 64 Mass. Law Review 157 (1979) . Therefore, the 1955 Ordinance, section 4 B(8) , makes lawful the "professional office of a physician or surgeon . in his or her private residence" . This then existing use is the continued and proposed use for the premises which becomes "grandfathered" from all zoning changes or amendments subsequent to 1955. Unfortunately, there has been much misinformation on exactly what the proposed use will be. So that it is clearly understood, the proposed use of the premises is as follows: Dr. Beverly Shafer will maintain a private residence at 376 Essex Street. She will also continue the professional doctor' s office use from the premises. Dr. Shafer has one associate physician employed by her who will maintain part-time office hours. There will be no other physicians at the premises. Leo E. Tremblay November 20, 1995 Page 4 It is expected that the two doctors will rarely be in the office at the same time, and each will see patients on a limited, part-time basis. Presently, Dr. Shafer maintains her office at 355 Essex Street. She merely seeks to move her office across the street, while enjoying a private residence for her use. The physicians office located within the private premises will include the necessary facilities and assisting personnel to run the office. In discussing the definition of an accessory "professional office" the Massachusetts Supreme Judicial Court has held that where the professional use is allowed, such use "includes the use of all equipment, facilities, and assisting personnel reasonably necessary for the practice of the profession involved . . . Any other construction would ' (destroy] the privilege given in that it would permit (the professional] to have an office but deny him, for all practical purposes, the privilege of using it' (cite omitted) . " Framingham Clinic v Zoning Board of Appeals of Framingham, 382 Mass. 283 , 292-293 (1981) . The fact that Dr. Shafer has a part-time associate does not change the characterization of the use as physician' s office/ residential mixed use or the character, purpose or nature of the use so as to make it noncomplying with the "grandfathered" use and in need of zoning relief. The Massachusetts Supreme Judicial Court in the case of Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973) established three tests for determining whether an alteration of a non-conforming use constitutes a "change or substantial extension" of such use that will subject the resulting use to the application of the current zoning laws, i.e. whether the use will lose its protected grandfathered status. Powers established that if: 1. the resulting use does not reflect the nature and Purpose of the non-conforming use prevailing when the zoning laws took effect, 2. there is a difference in the quality or character, as well as the degree, of the resulting use, or 3. the resulting use is different in kind and its effect on the neighborhood, then the zoning laws are applicable to the resulting use. Leo E. Tremblay November 20, 1995 Page 5 Powers at 653; see also Cape Resort Hotels. Inc. v. Alcoholic Licensing Board of Falmouth, 385 Mass. 205 (1982) ; Building Inspector of Groton v. Vlahos, 10 Mass. App. Ct. 890, 891 (1980) . Each of these three Powers tests has received extensive judicial consideration and will be discussed below. I. DIFFERENT "NATURE AND PURPOSE" OF USE Despite an increase in volume from the prior non- conforming use, or an extension of hours or periods of operation, a resulting use may still be deemed to reflect the same nature or purpose that previously existed. For example, all of the following were held not to constitute a change or substantial extension of the non-conforming use that would subject the resulting use to the current zoning laws: an increase in the volume of business of a junkyard, Building Inspector of Seekonk v. Amaral, 9 Mass. App. Ct. 869 (1980) ; an increase in the number of customers, Selectmen of Blackstone v. Tellestone, 4 Mass App. Ct. 311, 315 (1976) ; an increase in the volume and variety of goods sold, Powers; and the change from a seasonable motel to a year-round operation McAleer v Board of Appeals of Barnstable, 361 Mass. 317 (1972) . Furthermore, alterations in the manner of use to increase efficiency, such as the deployment of improved equipment or more efficient equipment do not necessarily constitute a change in the nature and purpose of the undertaking. The rule appears to turn on whether the alterations are ordinarily and reasonably adapted to the original use. In the present case, the alterations for which a building permit was issued were to upgrade the electrical service and the plumbing and to install two partition walls and a handicap bathroom. These alterations were made to modernize the premises so as to be able to conduct the original use of a doctor's office. Leo E. Tremblay November 20, 1995 Page 6 II. DIFFERENT "QUALITY, CHARACTER OR DEGREE" OF USE The second Powers test provides that the current zoning laws apply to the alteration of a non-conforming use if the resulting use constitutes a change in the quality or character, as well as the degree, of the prior non-conforming use. This test is similar to the first Powers test, and the courts have tended to discuss both tests simultaneously. The cases discussed below, however, have placed more emphasis on the second Powers test. Situations in which it was found that the changed uses were not different in quality or character, and thus were upheld, include the following: an increase in the volume of wholesale and retail sales, as well as an increase in the number of products manufactured on the premises; Powers, supra; an increase in the number of trucks and buses stored on premises originally used for the storage of busses and trucks; Blackstone, supra; the change from the storage of fuel products to storage of petroleum derived building materials, Derby Ref. Co. v. Chelsea, 407 Mass. 703 (1990) . A difference in the degree of use is not, by itself, critical. Generally, a "mere increase in the amount of business done, even a great increase would not work a change in use." Marblehead v. Rosenthal, 316 Mass. 124, 128 (1944) . In the present case, while it is difficult to determine exactly, it is believed that the original use, i.e. Dr. Cunney's medical office, was a more intense use than the proposed use of Dr. Shafer's practice. III. DIFFERENT EFFECT ON NEIGHBORHOOD The third Powers test provides that the current zoning laws apply to the alteration of a non-conforming use if the resulting use differs from the prior non-conforming use in its effect on the neighborhood. Only an increase in the severity of the adverse aspects of the use will trigger a "different in kind" holding. A resulting use that produces dust, fumes and noise will Leo E. Tremblay November 20, 1995 Page 7 not necessarily be found to be different in kind in the effect on the neighborhood, if the prior non-conforming use similarly produced dust, fumes and noise. Derby Ref. Co. , supra at 717. A long line of Supreme Judicial Court opinions have established that the existence of a lawful non-conforming use does not permit the erection of additional structures for extension of the use, absent express authorization by the local zoning law. Of course, no such additional structures are proposed in the present case. Again, the effect on the neighborhood from the proposed use is likely to be less severe than the original use due to the restricted days and hours in which patients are expected to be seen. Finally, Dr. Shafer currently conducts her practice within the very same neighborhood. ABANDONMENT Section 6 of the Zoning Act provides that a municipality's zoning laws may define and regulate non-conforming uses and structures "abandoned or not used" for a period of two years or more. I have previously provided for your review a run- down of title to the property beginning in 1941 which shows that the property has consistently maintained its mixed use of doctors office and residential character, uninterrupted to the present day. CONCLUSION The proposed mixed use of doctors office/residential is a "grandfathered" nonconforming use which has not been abandoned, and thus is allowed to continue. The character, degree and quality of the use, as well as its nature and purpose, has not adversely changed. The practice is presently within the very neighborhood of the premises and will in all likelihood have less of an adverse impact than the original use. For these reasons, Dr. Shafer should be allowed to occupy the premises and maintain the doctors office/residential use. If you have any questions or require any additional information, please do not hesitate to call me. Vef%rXPHC. terl/- 77y /rrslll, VOSC�RENTiI JCC/ln -f � enclosures cc: Robert A. Ledoux, Esq. PETITIONER MEMORANDUM SALEM ZONING BOARD OF APPEALS HEARING RE: Appeal of Zoning Enforcement Officer decision on the premises at 376 Essex Street PREPARED BY: RONAN, SEGAL & HARRINGTON 59 Federal Street Salem, MA 01970 508-744-0350: ISSUE Whether the proposed use by the current owner is a change or substantial extension of the use lawfully in existence in 1965 . It is well settled law that use of a structure which predates the zoning ordinance or an amendment of the zoning ordinance is not subject to application of the subsequent zoning ordinance. Such a use is nonconforming as to the existing zoning ordinance but lawful because the use is "grandfathered" or protected. Therefore, the nonconforming use may be continued, provided that the use is not abandoned or changed. It is also well settled law that in accordance with Massachusetts General Laws Chapter 40A, Section 6 , a "change or substantial extension" of a nonconforming use requires a finding by the permit granting authority, provided that the local ordinance authorizes such a modification. Blasco v. Board of Appeal of Winchendon 31 Mass . App. Ct . 30 ( 1991) In the instant case it is agreed by the parties that a noncon- forming use of the premises existed at the time of enactment of the 1965 zoning ordinance amendment . In addition, the current ordinance provides in Section 5-3( j ) that the Zoning Board of Appeals may grant special permits for "change, enlargement, extension or expansion of nonconforming lots , land, structures and uses . . Therefore, the issue to be decided is whether the use proposed by the property owner is a change or substantial extension of the existing nonconforming use. FACTS Determination of the issue necessitates a comparison of the lawful existing use and the proposed use in order to apply case law standards to the facts of this case . Following is a summary of "existing use" facts based upon the affidavit of John V. Cunney, M.D. ; and "proposed use" facts based upon the current property owner' s building permit application and plans submitted to the Building Inspector and also based upon the representations and "as- built" plans submitted at the public hearing on January 24 , 1996 . Existing Use (1965) Proposed Use A. Building Permit B. Public Hearing pricationsepresR entations 1. Deeded ownership -- 1. Deeded ownership -- 1.a. Deeded ownership -- physician and spouse trust with corporate trust with corporate entity as beneficial entity as beneficial owner owner b. Lease with tenant option to purchase 2. Physician occupation 2. No residential use 2. Representation of of three floors and residential use of basement for family unstated nature residence 3. Physician occupation 3. All rooms on first 3. All but one room of two rooms on first floor and all but one (kitchen & dining) on floor for medical undesignated room on first floor and three practice second floor for rooms on second floor medical practice (office manager, doctor's office, library) for medical practice 4. One (1) physician 4. Unknown 4. Two (2) physicians 5. Vehicular off street 5. Unknown 5. Off street parking parking restricted to plan for eight (8) residential use vehicles (residential /commercial alloca- tion unknown) 6. Employees -- one (1) 6. Unknown 6. Unknown CASE LAW In the case of Powers v. Building Inspector of Barnstable, 363 Mass . 648 ( 1973 ) , the Massachusetts Supreme Judicial Court established three tests for determining whether a change of a nonconforming use constitutes a "change or substantial extension" of the existing use which will subject the proposed or resulting 2 use to the current zoning ordinance . These tests are stated in the Powers case at page 653 as follows : 1 . Whether the resulting use reflects the nature and purpose of the use prevailing when the zoning law took effect. 2 . Whether there is a difference in the quality or character, as well as the degree, of the resulting use. 3 . Whether the resulting use is different in kind in its effect on the neighborhood. The Powers case and subsequent cases clearly indicate that a modification which meets any one of the tests will constitute a change of use. Most decisions of the Massachusetts courts are decided on the basis of the first two tests since they are virtually indistinguishable . The first two Powers tests are illustrated by a line of decisions over half a century which have found changes resulting in loss of the protections afforded nonconforming uses . Each of the following modifications was found (a) not to reflect the nature and purpose of the existing use, and/or (b) to constitute a different quality, character or degree of use: Decision Modification Marblehead v. Rosenthal Tailor to dry cleaner 316 Mass . 124 ( 1944 ) Everpure Ice Mfg. Co. Inc . v. Ice plant to fuel oil business Board of Appeals of Lawrence 324 Mass . 433 ( 1949 ) Dobbs v. Board of Appeals of Grocery store to beauty salon Northampton 339 Mass . 684 ( 1959 3 Hinves v. Commissioner of Grocery store to caterer Public Works of Fall River 342 Mass . 54 ( 1961) Brady v. Board of Appeals of. Mooring for four or five boats Westport and incidental repairs to a 348 Mass . 515 ( 1965 ) marina Bridgewater v. Chuckran Builder ' s yard to concrete 351 Mass . 20 ( 1966 ) mixing business Jasper v. Michael A. Dolan, Beer and wine store to full Inc . package good store 355 Mass . 17 ( 1968) Angus v. Miller Apartments to motel 5 Mass . App. Ct. 470 ( 1977 ) Building Inspector of Groton Car and truck dealer to heavy v. Vlahos vehicle repair and parking 10 Mass . App. Ct. 890 ( 1980 ) Cape Resorts Hotels Inc . V. Hotel to nightclubs Alcoholic Licensing Board of Falmouth 385 Mass . 205 ( 1982 ) Tamerlane Realty Trust v. Board Restaurant to hotel of Appeals of Provincetown 23 Mass . App.Ct. 450 ( 1987 ) One of the earliest decisions of this nature is cited in the Powers case and is instructive in this matter as it involved an existing commercial use by a person residing on the premises . In the 1930 case of Town of Lexington v. Bean 272 Mass . 546 , the Supreme Judicial Court applied the facts of the case to the then statutory standard of whether the new use is "substantially different" and concluded as follows at page 553 : The use of the shop by the defendant Perkins for the commercial purpose of repairing motor vehicles for hire is "substantially different" from a use of it by a person residing on the premises for the purpose of repairing 4 motor vehicles belonging to him as incidental to his trucking and express business and the occasional permissive use of it by persons storing automobiles on the premises . The use now made of the shop was not an "existing use,, of it at the time of the adoption of the by law, within the meaning of the statute. The courts have also decided three lines of cases which are exceptions to these tests . The first exception allows an increase in volume of business of a nonconforming use provided that the increased use is attributable to the growth of the original noncon- forming use . The second exception allows for improvements of equipment and alterations to increase efficiency provided that the changes are ordinarily and reasonably adapted to the original use. The third exception relates to changes from seasonal to full year uses . The following cases illustrate these narrow exceptions to the general rules: Decision Modification Powers v. Building Inspector Increase in volume and variety of Barnstable of goods sold and manufactured 363 Mass . 648 ( 1973 ) (candles only to candles and . other gift items ) Board of Selectmen of Increase in the number of Blackstone v. Tellestone customers and the number of 4 Mass . App. Ct. 311 ( 1976 ) trucks and busses stored Building Inspector of Seekonk Increase in volume of business v. Amaral of a junkyard 9 Mass . App. Ct. 869 ( 1980 ) Derby Ref . Co. v. Chelsea Change of product from one 407 Mass . 703 ( 1990 ) petroleum product to another 5 Wayland v. Law Use of a mechanical shovel in 325 Mass . 637 ( 1950 ) place of hand excavation of gravel pit Morin v. Board of Appeals Use of more modern printing of Leominster equipment 352 Mass . 620 ( 1967 ) McAleer v. Board of Appeals Chance from seasonable motel to of Barnstable year round use 361 Mass . 317 ( 1972 ) It is important to distinguish a case which deals with medical clinics and does not fall within these exceptions . The case of The Framingham Clinic Inc . v Zoning Board of Appeals of Framingham 382 Mass . 283 ( 1981 ) involved the use of a structure in a business district for an abortion clinic . This case clearly involves the interpretation of an allowed use in a business zone and is not in any way determinative or applicable to a case involving modification of a nonconforming use . The third Powers test provides that current zoning laws will apply to a change in nonconforming use which is different in its effect on the neighborhood. Only an increase in the severity of adverse effects will apply. Cases have found a difference in effect on the neighborhood as a result of increased traffic Powers, supra and increased periods of operation. Donovan Drug Corp. v. Board of Appeals of Hingham 336 Mass . 1 ( 1957 ) ARGUMENT A. Nature and Purpose of Prior Use The essential nature and purpose of the existing use of this structure in 1965 was primarily and substantially residential . Most of the structure was occupied by the physician-owner as his 6 residence. Two rooms on the first floor were used for the physician-owner' s family practice of medicine. This nature and purpose reflected the 1955 Salem Zoning Ordinance which allowed the use of a structure in this residential zone for the "office of a physician or surgeon . . . located in his or her private residence. " The plain intent of the zoning ordinance was to allow one physician to use a portion of his or her home for an office while maintaining the residential character of the structure and the zoning district. The 1965 Salem Zoning Ordinance confirmed and codified this intent by providing that any future use in the residential zone for "pro- fessional offices and other home occupations involving the use of a room or rooms in a dwelling" requires a special permit from the Zoning Board of Appeals . Salem Zoning Ordinances Section 5-3 (b) ( 1 ) at page 14 . Among other requirements the current ordinance requires that the professional use be operated only by the residents of the dwelling unit with not more than one ( 1 ) employee and utilizing not more than twenty-five percent ( 250 ) of the floor area of the dwelling unit . Although the nonconforming use in this case is protected against the requirements of the current ordinance, it is necessary to read the prior zoning ordinance in conjunction with the current zoning ordinance in order to determine the intent of the prior ordinance which created the lawful use of this building. The intent of the 1955 ordinance and the essential nature and purpose of the lawful existing use in 1965 was primarily and substantially residential . In this case petitioners submit that the application for building permit and subsequent representation to 7 the Board clearly show a substantial change in the nature and purpose of the existing use. Therefore, Chapter 40A and the Salem Zoning Ordinance require the property owner to obtain a special permit and the building permit must be revoked. B. Quality Character and Degree of Proposed Use The proposed use recited in the building permit application and to a lesser degree in the public hearing representations is substantially different in quality, character, and degree of use. The primary and substantial use is intended for a physician-lessee practice of a medical specialty with one additional physician and an unknown number of employees , and the majority of rooms on the first and second floors of the structure are utilized for the non- residential use . The fact that the physical changes to the building are minor and the expanded use is completely within the building is irrelevant . Further, despite the fact that this matter is before the Board on the basis of appeal of the Building Inspector' s decision to issue a building permit in all matters concerned with nonconformities, the burden of proof is on the property owner to show "the requisite similarity between the current use and the original nonconforming use" . Cape Resorts v. Alcoholic Licensing Board of Falmouth 385 Mass . 205, 212 ( 1912 ) ; Bridgewater v. Chuckran 351 Mass . 20 , 24 ( 1966 ) . The statutory appeal is available precisely because changes inside a structure are not always subject to general knowledge unless a property owner applies for a building permit. In this case, petitioners submit that the property owner's intended use of the structure was clearly stated in the application 8 for building permit and neither the application or the materials subsequently submitted to the Board met the burden of proof required to sustain a position that the proposed use is the same as the existing use. Therefore, Chapter 40A and the Salem Zoning Ordinance require that the property owner obtain a special permit for the proposed use and the building permit must be revoked. C. Effect upon Neighborhood The proposed use will effect the neighborhood more adversely than the prior use by removal of a residential occupant from the residential district, by increasing the number of physicians and employees using the structure, and by increasing the physician, employee, and patient vehicular traffic and off street parking. Neither the building permit application or the subsequent repre- sentations to the Board contain sufficient information to address these matters and the off street parking requirements required by the current ordinance regardless of the grandfathered use. D. Powers Exceptions The change in use of this building fails all three Powers tests . The narrow Powers exceptions do not apply to these facts . Although an increase in the number of patients or the variety of medical service offered could qualify as an exception, and although an alteration to allow for a larger examination room or the addition for example of EKG test equipment could also qualify as an exception, such exceptions would only apply to a case where a sole physician continued his or her medical practice in room or rooms in his or her private residence to the same degree as previously used. 9 In this case the facts presented to the Building Inspector in the application for a building permit showed (a) ownership by a non- physician business entity, (b) no residential use, and (c) use of all but one room of two floors for office use. In addition, the application did not include a parking plan. Likewise, the public hearing representations (a) did not provide evidence of the nature of intended residential use except for re-designation of certain rooms as residential in nature and addition of a third floor plan, (b) did not provide evidence as to who would reside in the structure, (c ) continued to use most of the first and second floors for professional use, (d) did not present evidence as to the number of employees so as to determine off street parking requirements, (e) proposed a parking plan which does not provide the required width of entrance and exit drive, and ( f) presented evidence that two ( 2 ) physicians will use the structure for offices . CONCLUSION Given the facts presented in this case, the proposed use of this building fails all three Powers tests and cannot constitute an exception to the narrow types of . increased activity allowed by decisions of the courts . Rather, the facts clearly show a proposed use which is a "change, enlargement, extension or expansion" of a nonconforming use which in accordance with Massachusetts General Laws Chapter 40A, Section 6 and Salem Zoning Ordinance 5-3 ( j ) requires a special permit from the Zoning Board of Appeals . The application for building permit clearly stated the proposed use and thus must be revoked. 10 r The Commonwealth of Massachusetts State Ethics Commission John W.McCormack State Office Building, Room 619 One Ashburton Place, Boston 02108 Telephone 1617) 727-0060 Fax (617)723-5851 All been entifq�yg i�ormatYo opinion as ed from tn his required by Chapter 268s, section 3(S). CONFLICT OF INTEREST OPINION EC-COI-92-24 FACTS: You are an elected member of a municipal Board of Health (Board). You wish to know whether you may participate in votes and discussions concerning a proposal for a facility (the project) which would be adjacent to your neighborhood. You state that you recently sold a home in the area and that the value of that home was directly affected by the project. You also recently purchased a new home within the same area (further from the project but within the affected area) and have concluded that the purchase price was, in fact, affected by the operation of the project QUESTIONS: (1) May you participate in votes or discussion involving the project? (2) Would the Rule of Necessity permit you to participate in matters involving the project if other members of the Board are also affected by the project? ANSWERS: (1) No, for the reasons stated. below. (2) The Rule of Necessity, if properly invoked, would permit you to participate in matters involving the project, notwithstanding your foreseeable financial interest. DISCUSSION: Section 19 Section 19 of c. 268A provides that a municipal employee may not f participate) as such a municipal employee in any particular matter'/ in which to his knowledge he, his immediate family or partner, a business organization in which he is serving as officer, director, trustee, partner or employee, or any person or organization with whom he is negotiating or has any arrangement concerning prospective employment. has a financial interest. The financial interest may be of any size, and may either be positive or negative. See, e.g., EC-COI-89-33; 89-19; 84-96. If the municipal employee's financial interest will be affected either directly or foreseeably, the municipal employee must abstain from the matter in question. See, e.g., 89-19; Commission Advisory No. 11 (Nepotism); see also Graham v. McGrail, 370 Mass. 133 (1976). Participation in a particular matter includes both discussions and votes concerning the matter. See Graham, 370 Mass. at 137-138. Graham v. McGrail concludes that, while not required by law, it is advisable for the municipal employee to leave the room whenever he is prohibited from participating because of the restrictions of §19. Id., 370 Mass. at 138. You have informed us that the value of the home you recently sold (prior to your becoming a member of the Board) was directly affected by the project, as was the value of the home recently purchased by you in the same area. In light of your facts. it is reasonable to conclude that the value of the home recently purchased by you within the same area will continue to be affected by matters involving the project) Consequently, you may not participate in votes or discussions concerning the project because it is reasonably foreseeable that your financial interest will be affected as a result of your continued home ownership in an area near the project. J"Participate," participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval. decision, recommendation, the rendering of advice, investigation or otherwise. G.L c. 268A, §10). J"Particular matter," any judicial or other proceeding, application, submission, request for a ruling or other de.tetminadon, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property. G.L c. 268A, §1(k). JIn an informal staff letter to you dated April 1, 1991, you were informed that you could submit additional information to this Commission which evidenced that your financial interest would not be affected by the project as a result of purchasing a new home in the area. Although you have now requested this formal Commission opinion. you have not asked the Commission to consider any additional facts concerning your financial interest. Thus, we must presume that you do not have any facts available which would indicate that your financial interest will not be affected by the project in question. Cf. EC-COI-89-33 (presumption of financial interest can be rebutted by evidence to the contrary). EC-COI-92- 44 September , 1992 Page 3 The Rule of Necessity As an elected member of the Board, you may participate in votes or discussions concerning the project only if the Board has occasion to properly invoke the so-called Rule of Necessity) Sed eg., EC-COI-82-10. That judge-made rule permits governmental bodies to act,on matters when a quorum cannot be obtained because of Board members' conflicts of interest.2 Thus, the Rule of Necessity permits governmental bodies to act when they otherwise would have been forced to forego their governing responsibilities. However, as 82-10 stated: [t]he rule should only be utilized where so many members of a tribunal are disqualified that the body is incapable of acting because an insufficient number remain to constitute a quorum The Rule of Necessity is considered a rule of last resort and may not be invoked when a way can be found to provide a qualified tribunal, such as by excluding from the tribunal the disqualified member or by counting only the votes of the members who are qualified. 2 K Davis,Administrative Law, §12.04; EC-COI-82-10. The mere absence of a quorum because of illness or absence of a member (for example) does not allow the Rule of Necessity to be invoked. See Graham v. McGrail, 370 Mass. at 138. Further, once a quorum has been obtained, the Rule of Necessity cannot be used to break a tie vote. It is always advisable, although not required, that the Rule of Necessity be invoked by the Chairperson of the Board upon the written advice of town counsel, because a Board member would violate §19 if the Rule is improperly invoked. Town JSection 19(b)(3) provides an exemption for municipal officials where the particular matter in question involves a determination of "general policy' and the financial interest of the municipal employee is shared with a substantial segment of the population of the municipality. However, we do not have sufficient facts in your case to make a determination under §19(b)(3). Consequently, based upon the facts presented to us, you may not rely upon the §19 exemption. JIf the number for a quorum is not set by law, a quorum is generally considered to be a majority of the board's members. EC-COI-92-ay September , 1992 Page 4 counsel's advice should provide the reasons why the Rule of Necessity is being used, and explicitly indicate that a quorum can be obtained only by invocation of the rule. (It is advisable for town counsel to establish guidelines, in advance, describing the circumstances under which the rule should be invoked.) The minutes of the Board should also indicate that the Board was unable to obtain a quorum because of the disqualification of members and, as a last resort, each of those disqualified members will now participate under the authority of the Rine of I•lecessiy. Accordingly, if other members of the Board also have conflicts of interest involving the same particular matter such that a quorum cannot be obtained,) you may participate in matters involving the project even if the value of your home will be affected by your participation in the matter once the Rule of Necessity is properly invoked by the Board. DATE AUTHORIZED: September 10, 1992 JThe conflicts of interest need not be the same conflict which you have. For example, if you serve on a three member Board and you cannot participate for the reasons stated above, and another member cannot participate because she has a direct interest in the project, the Rule of Necessity may be invoked. The Rule of Necessity would permit all three members of the Board to participate, notwithstanding the various potential conflicts of interest. L J SERAFINI, SERAFINI AND DARLING ATTORNEYS AT LAW 63 FEDERAL STREET SALEM. MASSACHUSETTS 01970 JOHN R. SERAFINI, SR. TELEPHONE JOHN R. SERAFINI.JR. 508.744.0212 JOHN E. DARLING 617-551 2743 ELLEN M. WINNLER TELECO PIER JOSEPH C CORRENTI 508-741-4683 February 6, 1996 DELIVER IN HAND Mr. Stephen C. Touchette Chairman, Board of Appeal One Salem Green Salem, MA 01970 RE: Potential Conflict of Interest of Sitting Board of Appeal Member Involving Appeal Concerning 376 Essex Street Dear Mr. Touchette: This letter is submitted to you on behalf of the owner of the property at 376 Essex Street (the "premises") . As you know, the Essex Street Neighborhood Association has taken an appeal from the decision of the Zoning Enforcement Officer concerning the allowed use of the premises and that appeal is currently pending before the Board. On January 24, 1996, the public hearing on the appeal was opened and testimony was taken from several dozen neighbors and other persons in attendance. The public hearing has been continued to February 21, 1996. During the January 24th Hearing, much of this testimony was that the proposed use of the premises, if allowed, would have a negative financial impact on the neighboring property values. At least one neighbor stated that they were there to protect their investments. Also, during the hearing a representative of a group called the Chestnut Street Associates spoke. Chestnut Street is adjacent to Essex Street. The Chestnut Street Associates was identified as a group representing owners, residents, renters and friends of Chestnut Street. It was further stated that the group, which is comprised of approximately one hundred members, had informally polled its membership and that the Board of Directors of the group had taken a vote and that they had "voted very strongly to take a position in favor of this petition". L Mr. Stephen C. Touchette February 6, 1996 Page 2 As you may know, a member of the Board of Appeal, Ms. Nina Cohen, is a resident of Chestnut Street. Ms. Cohen is currently sitting as a voting member on this appeal. In order that a fair and impartial hearing be assured and to prevent the Board's ultimate decision on this appeal from being subsequently attacked on a procedural basis, the following issues should be addressed: 1. Whether, the participation in the decision-making process of Ms. Cohen, a Chestnut Street resident and the only member of the Board who lives in the neighborhood of the premises, is a conflict in that the Chestnut Street Associates has strongly supported this petition. 2. Whether, in light of the public testimony of several Essex Street, Chestnut Street and other neighboring residents concerning the negative effect the proposed use of the premises would have on values of other properties in the neighborhood, Ms. Cohen has a financial interest of any kind, be it direct or indirect, in these _proceedings, and, therefore, is in conflict of interest, or whether her participation creates the appearance of such a conflict. As counsel to the property owner, I am aware that there are State statutes regulating the conduct of public officials and employees. These are designed to insulate the proceedings and decision from any appearance of a lack of objectivity in evaluating the matter. In this case, the testimony and recitation for the record and vote represent the strong opinion of homeowners and neighbors adjacent to the member's residence, presenting, at the very least, the appearance of conflict. It would, therefore, seem appropriate for the member not to place herself in that position. While not having made any contact, formally or informally, with any State official concerning this matter, I am also aware of at least one State Ethics Commission Conflict of Interest Opinion which stands for the proposition that a municipal board member may not participate in votes or discussions concerning a project if it is reasonably foreseeable that his or her financial interest will be affected by the project as a result of the member's home ownership in an area near the project. I enclose that opinion for your information and review. Mr. Stephen C. Touchette February 6, 1996 Page 3 Based on all of the above, it is hereby requested that the issue of a potential conflict of interest involving Ms. Cohen and the pending petition concerning 376 Essex Street be formally addressed. Sincerely, The Charter Trust by its attorney, f -c ' i1i JOHN R. SERAFINI, SR. JRS,SR. /ln enclosure cc: Robert A. Ledoux, Esq. enclosure cc: George W. Atkins III, Esq. enclosure COPIES TO CITY SOLICITOR & BOARD OF APPEALS - 4/22/96 RONAN, SEGAL & HARRINGTON A70RNEYS AT LAW FIFTY-NINE FEDERAL STREET it JAMEST RONAN(19221987) SALEM,MASSACHUSETTS 019703470 JACOB 5.SEGAL MARY PIEMONTE HARRINGTON 'SOB)7440350 • - - �� '.GEORGE N.ATKINS,III �Ax(508)7447493 aRlANvcAsslov H-664 FILE NO. April 22, 1996 City Clerk' s Office City Hall 93 Washington Street Salem, MA 01970 Dear Sir/Madam: Enclosed for filing please find a Notice of Appeal of a Decision of the Salem Zoning Board of Appeal and a copy of a Complaint filed in the Land Court Department, being Civil on No. 227758 Very truly yours ( orge W. At i s , III kmb / Enclosures COMMONWEALTH OF MASSACHUSETTS ESSEX, ss . DEPARTMENT OF THE LAND COURT Civil Action No. 227758 JOHN F . DAVIS, Jr. , ALYCE M. DAVIS, STEVEN K. GREGORY, MARY KATHRYN BRATUN, PALMER SWECKER and ELMA SWECKER, Plaintiffs, V. STEPHEN TOUCHETTE, GARY BARRETT, NINA COHEN, ALBERT HILL, and JOSEPH YWUC, AS THEY ARE MEMBERS OF THE ZONING BOARD OF APPEAL OF THE CITY OF SALEM and � r LEO E . TREMBLAY, AS HE IS THE INSPECTOR OF BUILDINGS AND ZONING ENFORCEMENT OFFICER OF THE CITY OF SALEM c-: and LINDA W. NICHOLS, TRUSTEE AS SHE IS THE SOLE TRUSTEE OF CHARTER TRUST, Defendants . COMPLAINT 1 . This is an appeal from a. decision by the Zoning Board of Appeal of the City of Salem, Massachusetts , ( hereinafter the "Board" ) wherein the Board exceeded its authority by denying a petition to rescind a building permit issued by the office of the Defendant Leo E . Tremblay, Inspector of Buildings of the City of Salem (hereinafter "Building Inspector" ) with reference to the building at 376 Essex Street, Salem, Massachusetts , (hereinafter "Building" ) owned by the Defendant Charter Trust (hereinafter "Charter" ) . The Board exceeded its authority in that the building permit authorized a substantial change and extension of an existing nonconforming use of the Building to a proposed use which will provide for its use in a substantially different manner contrary to the Salem Zoning Ordinance and Massachusetts General Laws Chapter 40A, Section 6 , which provide that no such change and extension shall be permitted unless there is a special permit finding by the permit granting authority. Parties 2 . The Plaintiff John F . Davis , Jr. , is a natural person residing at 374 Essex Street, Salem, Massachusetts 01970 , and is an abutter to the Building. 3 . The Plaintiff Alyce Davis is a natural person residing at 374 Essex Street, Salem, Massachusetts 01970, and is an abutter to the Building. 4 . The Plaintiff Steven K. Gregory is a natural person residing at 141 Federal Street, Salem, Massachusetts 01970, and is an abutter to the Building. 5 . The Plaintiff Mary Kathryn Bratun is a natural person residing at 141 Federal Street, Salem, Massachusetts 01970 , and is an abutter to the Building. 6 . The Plaintiff Palmer Swecker is a natural person residing at 380 Essex Street, Salem, Massachusetts 01970 , and is an abutter to the Building. 7 . The Plaintiff Elma Swecker is a natural person residing at 380 Essex Street, Salem, Massachusetts 01970 , and is an abutter to the Building. 8 . The Defendant Stephen Touchette is a member of the Board and resides at 45 Gallows Hill Road, Salem, Massachusetts 01970 . 9 . The Defendant Gary Barrett is a member of the Board and resides at 7 Patton Road, Salem, Massachusetts 01970 . 10 . The Defendant Nina Cohen is a member of the Board and resides at 22 Chestnut Street, Salem, Massachusetts 01970 . 11 . The Defendant Albert Hill is a member of the Board and resides at 4 Larkin Lane, Salem, Massachusetts 01970 . 12 . The Defendant Joseph Ywuc is a member of the Board and resides at 16 Pleasant Street, Salem, Massachusetts 01970 . 13 . The Defendant Leo E. Tremblay is the Building Inspector and Zoning Enforcement Officer of the City of Salem with an office at One Salem Green, Salem, Massachusetts 01970 . 14 . The Defendant Linda W. Nichols , Trustee, is the sole trustee of Charter Trust, having a business address at 63 Federal Street, Salem, Massachusetts 01970 . Jurisdiction 15 . This court has jurisdiction to hear this matter pursuant to Massachusetts General Laws Chapter 40A, Section 17 . Facts 16 . On or about August 2 , 1995 , an "Application for a Permit to Build an Addition, Make Alteration or New Construction" (hereinafter "Building Permit Application" ) at 376 Essex Street in Salem, Massachusetts, was filed with the office of the Defendant Building Inspector, a copy of which is attached as Exhibit 1 . The building permit was issued on August 15 , 1995 by an approval noted on the Building Permit Application. 17 . The Building is located in a two-family residential zoning district under the provisions of the City of Salem Zoning Ordinance . 18 . The existing use of 376 Essex Street is principally as a single-family residence with a nonconforming secondary use as a two- room physician's office located on the first floor of the residence for the use of the resident physician. The physician's office is an unauthorized use under the current zoning ordinance, but an allowed use in that it existed prior to the current zoning ordinance provision affecting such use. 19 . The proposed use of the Building as described in the Building Permit Application and plans attached thereto is for medical offices for nonresident physicians utilizing all of the first floor and the majority of the second floor of the structure. 20 . A request for enforcement of the zoning ordinance was submitted to the Building Inspector by the Plaintiffs and others and, following the refusal of the Building Inspector to take enforcement action, a petition was filed with the Board requesting that the building permit for the Building be rescinded, all in accordance with the provisions of Massachusetts General Laws Chapter 40A, Sections 8 and 15 . 21 . After public hearings , the Board denied the petition to rescind the decision of the Building Inspector by written decision dated March 20, 1996 , filed with the Salem City Clerk on April 3 , 1996 . A certified copy of said decision is attached herewith as Exhibit 2 . 22 . The Plaintiffs herein, all abutters to the Building, are persons aggrieved by the decision of the Board in that their injury is special and distinct from the concerns of the rest of the community, their legal rights have been or likely will be infringed, and their property interests are adversely affected. 23 . The decision of the Board exceeded its authority in that: (a) the proposed use of the Building is a substantial change and extension of the existing nonconforming use which will result in use of the Building in a substantially different manner; (b) Massachusetts General Laws Chapter 40A, Section 6 , and the Salem Zoning Ordinance provide that no substantial change and extension of a zoning nonconformity shall be permitted without a special permit finding by the permit granting authority, and (c ) the building permit in this matter was issued by the Building Inspector without a special permit application by Charter, and without a special permit finding by the Board. WHEREFORE, the Plaintiffs herein pray that the decision of the Board be annulled, and the building permit issued by the Building Inspector be rescinded. PLAINTIFFS John F. Davis , Jr. , Alyce M. Davis , Steven K. may, Mary Kathryn Bratun, Palmer Swecker and Elma Swecker, By thei rney, ge W. Atki , "III BBO No . 02335 Ronan, Segala Harrington 59 Federal Street Salem, Massachusetts 01970 ( 508 ) 744-0350 L4,30- City of Salem E Ward Z a 4ctm ayr APPLICATION FOR ERMiT TO BUILD ADDITION, MAKE ALTERATIONS OR NEW CONSTRUCTION IMPORTANT-Applicant to complete all items in sections:1, 11, /it, N, and IX. 376 I'SSEX s 1l. 2OMNG -7 AT(LOCATION) MIRIETH OISMICT )CAnON ate' r BETWEEN ( AND i r7+as1 slaean Ira1Q4ti aIFFFn JILDING LOT St18OM5ION .__LOT BLOCK SIZE TYPE AND COST OF BUILDING -All applicants complete Parts A -D . TYPE OF IMPROVEMENT O. PROPOSED USE•FOR-DEMOLITION"USE MOST RECENT USE 1 ❑ New building RMldenWl NmnealtlMtMl 2 ❑ Addtbon fN ntscenmL enter numberd new 12 C] One fantdy 18 Arrawmcra retxatorw housng units added.N any.m Dart a 11) 19 Q Cfvucm oNer migoua 13 ❑ Two or mote oun.ly.Enter number 3 0Aharaton(See 2 abovel of unns 20 Q tMulad 21 Pnastg garage 4 ❑ Repair reotacemns 14 Transient toteL tnowL of donrvfory• 22 ❑ Servo station repay ganaw Enter number,of units 5 ❑ VAerJcng(N mmNenW residenoal saw ntmoer 23 Q istmatorwt its d unam bwon og Part O. 13) 15 Garage 24 Ofriu.banrl.orofrmorW 6 Q Mowng(reloatw+) 16 ❑ Carbon 25 Q Pudeut2tty 26 ❑ Schabl.library,other eoutalots! 7 Q Foundation onry 17 ❑ ouw..saw4v 27 Q S1ore,L meromde :.OWNERSHIP 26 ❑ Isnka.lowers 6 Private ImdrriduaL caporaten nonapht 29 ❑ Other-saecey irovtuton etel 9 Q Public(Federal.state.or tact gotwrmwrn :.COST '. (Onc cans) I Nonresoems)•Deeaoe r7aW orpoosea use d Ourldirlga.eg-food prpCaesatg plant !" rmauw scop.Iatamry,buddng at hnloeaL ewrwrmy wool.secprosty scha l.CDOKM. Parbralst aulpoL ParrterJ pvape for deperaewrl iiia.rerrsr dice building.adice budding 0. Cost at imptpYer W = et mm ml cwa.N use ciemrng budding w bang awngeo.enter Q 1 i" ed uaa To be installed but not mrJuded in the above cost a. Electrical a Plumong c. Heating,aur conathomlg d. Over lewvator.emj { 11. TOTAL COST OF IMPROVEMENT 1. SELECTED CHARACTERISTICS OF SUfLDING - For new buildings and additions,complete Pans E L:demolition, complete only Parts J& M. all others s1Go to IV PRINCIPAL TYPE OF FRAME F. PRHWAL TYPE OF HEATING FUEL G. TYPE OF SEWAGE DISPOSAL I. TYPE OF MECHANICAL. M ® Masorry(was beerng) 35 ® Dae 40 ® Pubad or Ornate csnrmnY cod there be central ar 16 ® 02 a1 C] PIMte septi 121111kem) cortdeonn9l 31 C] Wood frame 44 ® Yes 45 1: No 32 Q sWelurat steel 17 0 EleearratY 33 Q Rentoreed concrete 38 ❑ coat H. TYPE OF WATER SUPPLY Wit there by an ewvnor7 34 OVwr-soxrtv 39 ❑ Other.stwaty 42 Z Public or onvate meorlY 46 ❑ Yes 47 zNo A3 Prnale lvwK pLlRmr r J.DORENSIONS M. DEMOLITION OF STRUCTURES: 19.'Taal aamm tem a Boar area all eaon on"°A°i°n0 awnHas Approval from Histoncai Commission been received xi Tay lana area.s[am for any structure over fifty 1501 years? Yes_ No_ 30 " `r__--- Dig Safe Number K.NUMBER OF OFF-STREET PARKING SPACES St, Enaosao Pest Control: sz OLMOOM HAVE THE FOLLOWING UTILITIES BEEN DISCONNECTED? L RESIDENTIAL aunMINGS ONLY Yes No ss Er�meb I Water. Electric: er a Full Gas: 54. Numb Sewer. P,mm DOCUMENTATION FOR THE ABOVE MUST BE ATTACHED BEFORE A PERMIT CAN BE.JSSUED. IV. COMPLETE THE FOLLOWING: Historic District? Yes-X Nom (If yes,please enclose documentation from Hist Com.) Conservation Area? Yes_ Nom (If yes,please enclose Order of Conditions) Has Fire Prevention approved and stamped plans or applications? Yes No_ Is property located in the SAA district? Yes_ Nom Comply with Zoning? Yes-.Z- No_ (If no,enclose Board of Appeal decision) Is lot grandfathered? YM-LO No_ (If yes,submit documentationlf no.submit Board of Appeal decision) If new construction,has the proper Routing Slip been enclosed? Yes.�L No_ Is Architectural Access Board approval required? Yes_ Nom (If yes,submit documentation) Massachusetts State Contractor License a 06 2 //$ Salem License c /S07 Home Improvement Contractor x 4/A- Homeowners Exempt form (if applicable) Yes_ No_ CONSTRUCTION TO BE COMMENCED WITHIN SIX(6) MONTHS OF ISSUANCE OF BUILDING PERMIT ,ONSTRUCTION IS TO BE COMPLETED BY: If an extension is necessary, please submit in writing to the fnsoector of Buildings. IDENTIFICATION • To be'completed by all applicants Name Mm"aooren•Number.sum cay,and rite ZIP cane Tel.Na .ear NOskO0,T, u4E-WCA Si !+r'allCalJ ave sr�l ►� o197b 71YH215- I CO+Go 3/ AoR/ �A�L (�Rar� itra a/826 Sob-9S7z: euaeera l5�� l.lmtne Na rieea a I hereby certify that the amoosed work is authormed by the owner of record and that 1 have been aumoraed by the owner to make this al)JAC3111 as nis authorized agent and we acres to conform to all aoolimbte laws of this jurisdiction. mature or aooucaru- I Appiiceaon tate yr'7uu� 0 /'x�� I Address�3/ ��t2o v G.4,v� baacu� «a o�szH c_ -g DO NOT WRITE BELOW THIS LINE VI. VALIDATION Building FOR DEPARTMENT USE ONLY permd number Building �)5' useGrouD Permit issued 19 'I Fire Grading Building 33� ff� Liwe � Permit Fee S OccudanCV Load Certificate of Occupancy $ Approved by: Drain Tile $ Plan Review Fee 5fin _. J TRLE J TVv NOTES AND Data • (For department use) ��,.o•tea-�2._ /�,'�c��yy—c O `I��-��r- �-1 II V G PERMRTO BE MAILED TO: C Otl•>`rcc�0 r DATE MAILED: Construction to be started by. Completed by. ofttlem, � ttss�zcljusetts - ' � x ;o4V 9 PoMrb of �kppzal APR 3 2 so F '96 DECISION ON THE PETITION OF DONALD L. HODGEMAN et al REQUESTING THE BOARD TO RESCIND THE DECISION FOR THE PROPERTY LOCATED AT 376 ESSEX STREET (R-2) A hearing on this petition was held January 17, 1996 and continued again to February 21, 1996 and heard again March 20, 1996 with the following Board Members present: Stephen Touchette, Chairman; Gary Barrett, Nina Cohen, Albert Hill and Joseph Ywuc. Notice of the hearing was sent to abutters and others and notices of the hearing were properly published in the Salem Evening News in accordance with Massachusetts General Laws Chapter 40A. Petitioners are requesting an Administrative Ruling in accordance with Section IX of the Zoning Ordinance and MGL 40A. Section 7 relative to the use of the premises and Enforcement of Sections V-B (2) and VIII-E (6) of the Zoning Ordinance with respect to said premises. More specifically, the petitioner, owner of the property, is requesting the Board rescind the decision of the Salem Zoning Enforcement Officer to issue a building permit for the property located at 376 Essex Street (R-2 ) . After hearing the evidence the Board of Appeal makes the following findings of fact: 1 . Both the petitioner and the owner of the premises were represented by counsel, each of whom made oral presentations and submitted written briefs. 2. The property at 376 Essex Street is located in an R-2 District. 3. From approximately 1941 through 1981, the property was owned and used by Dr. John Cunney as a private residence and professional office for his medical practice. In 1981, the property was purchased by Dr. Reynes and used as a residence and medical office until 1988, when it was sold to the Kirsches. They used .it as a residence and professional office until it was sold to the present owner, Charter Trust. 4. The use of the property as a physician's office within a private residence was an allowed use pursuant to the 1955 Zoning Ordinances and it became a non-conforming use in 1965 when the Salem Zoning Ordinance was changed. 5. The non-conforming use as a physician's office in a private residence has been continuously maintained to the present time. 6. Dr. Shafer stated that she will use the premises as a medical office and a residence. She will see patients in conjunction with one (1) associate three (3) days a week. Dr. Shafer stated that she will employ other administrative and medical staff. 7. Dr Shafer offered to register to vote in Salem, register her motor vehicle in Salem and use her Essex Street address for her professional licenses. DECISION OF THE PETITION OF DONALD L. HODGEMAN FOR THE PROPERTY LOCATED AT 376 ESSEX STREET (R-2) page two 8. The physical changes to the building involved painting the interior, replacing carpets, partitioning the "family" room into examination rooms , adding a handicap accessible bathroom and a handicap ramp. 9 . The petitioners presented testimony that the floor plan submitted with the application for the building permit showed an increase in floor space devoted to the medical practice over that used by prior owners. The petitioners also presented testimony that Dr. Cunney did have any associated in practice with him and that he had one ( 1 ) employee. 10. A number of documents were received by the Board and made part of the public record. They include the following: 1 . Briefs submitted by both attorney' s. 2 . Letters, both in favor and opposition. 3 . Signed petition from both in favor and opposition. Therefore, based on the above findings of fact and on evidence presented, the Zoning Board of Appeals voted three (3) in favor and two (2) opposed. Faiiine to garner the necessary four (4 ) votes, the Petition was denied. Petition Denied March 20, 1996 �l ccclC C rsr: Stephen Touchette, Chairman Board of Appeal A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed within 20 days after the date of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certification of the City Clerk that 20 days have elapsed and no appeal has been filed, or that, if such appeal has been filed, that it has been dismissed or denied is recorded in the South Essex Registry of Deeds and indexed under the name of the owner of record or is recorded and noted on the owner 's Certificate of Title Board of Appeal TRUE COPY ATTEST -1VALEAK SALEM. MASS. NOTICE OF APPEAL OF A DECISION OF THE ZONING BOARD OF APPEAL FOR THE CITY OF SALEM BY WAY OF A COMPLAINT FILED IN THE LAND COURT The Plaintiffs named in the attached Complaint hereby give notice of their Appeal of the Decision of the Zoning Board of Appeal of the City of Salem entitled "Decision On The Petition Of Donald L. Hodgeman et. al . Requesting The Board To Rescind The Decision For The Property Located At 376 Essex Street (R-2) " dated March 20, 1996, and filed with the Salem City Clerk April 3, i � G orge W. ins, III BBO No. 0 50 Ronan, S 1 & Harrington 59 Federal Street Salem, Massachusetts 01970 (508) 744-0350 Z . r,. SERAFINI, SERAFINI AND DARLING ATTORNEYS AT LAW 63 FEDERAL STREET SALEM. MASSACHUSETTS 01970 JOHN R, SERAFINI. SR. TELEPHONE JOHN R. SERAFINI.JR. 508-744-0212 JOHN E. DARLING 617.5612743 ELLEN M. WINRLER TELECOPIER JOSEPH C. CORRENTI 508.7414663 January 23, 1996 , Leo E. Tremblay Inspector of Buildings City of Salem One Salem Green Salem, Massachusetts 01970 RE: 376 Essex Street, Salem, MA Dear Mr. Tremblay: Enclosed for filing with your office please find a set of as- built plans as well as a parking plan for the premises located at 376 Essex Street. We will be seeking a Certificate of Occupancy based upon these plans. Si erely, s ph C. Correnti JCC: jaf Enclosures Driveway Sli Proc,d e �( � Room `� ,mss-ter, Waiting Room L-ivi� ng Room p Exam tNurse Toilet i; Hall 'Hal , Exam! —_ 1 1 Foyer n m d n =Entry +- -r HC C _ Toile - - -Hallam d !Dodo's Kit&` oom R Office Dining - --- AS - BUILT FIRST FLOOR scale: 1/8 = V-110" Office Sitting Room Manager and Porch Enclosed Porch y Closet Closet Closet Hall - rt Doctor's Office 1 Stairs Roof \ " Closet Hall Bedroom 90Bath library AS - BUILT SECOND FLOOR. \\ scale: 1/8 = 1'— 0" I . Closet Exercise and TV Room Bath a Hall do I Guest Bedroom Closet — Guest d Bedroom N O U AS BUILT THIRD FLOOR scale: 1/8 = 1'— 0" X955 ZONING ORDINANCE CITY of SALEM In the yearone thousand nine hundred aannd fifty-five An Ordinance relating to Zoning $ 1. Establishment of use districts. $ 2. Use of land. $ 3. Historical districts. $ 4. Single residence districts. $ 5. General residence districts. $ 6. Apartment house districts. $ 7. Semi-residence districts. $ 8. Business districts. $ 9. Industrial districts. $ 10. Soil removal $ 11. Requirement for garage access. $ 12. Non-conforming buildings, structures and uses. $ 13. Public service corporations. $ 14. District boundaries. $ 15. Definitions. $ 16. Execution. $ 17. Board of Appeal. $ 18. Repeal or modification. $ 19. Petition and plan for repeal or modification- 1 20. Invalidity. $ 21. Penalty for violation. . $ 22. Effective date. Sec. T: Establishment of use districts. For the purpose of this ordinance, the City of Salem is hereby divided into seven classes of use districts, to be known as: A. Historical districts B. Single residence districts C. General residence districts D. Apartment house districts E. Semi-residence districts F. Business districts G. Industrial districts as shown on the Zoning Map dated January, 1955 and fded in the office of the City Clerk, which map, together with all the boundary lines and designations thereon, is hereby made a part of this ordi- nance. 50 ZONING ORDINANCE Sec. 2• Use of land. No land shall be used in any district for any purpose for which a building structure or part thereof may not be used in the district, or for any purpose which is not specifically allowed in the district. Sec. 3. Historical districts—A. �. In the historical districts, no new building or structure, or part thereof, shall be constructed or used, and no existing building or structure or part thereof shall be altered, enlarged, reconstructed, or used for . . . 1: A. Any industry, trade, manufacturing or commercial purpose; or for B. Any purpose except one or more of the following specified uses: 1. Dwelling for not more than two families; i 2. Office of a physician, surgeon or dentist, located in his or her private residence, provided that there is no adver- tising except a professional name plate not larger than 288 square inches attached against the house and not i protruding therefrom; 3. Private garage and such accessory uses as are customary in connection with the foregoing uses and are incidental II thereto. C. No existing building or structure or part thereof shall be altered, enlarged, or reconstructed in any way that will alter the exterior architectural design of the building or structure. D. The intent and purpose of this section is to preserve, main- tain and promote the historical character of the historical districts. Ste 4'Single resider districts=B� In the single residence districts, no new building or structure, or part thereof, shall be constructed or used,and no existing build- ing or structure, or part thereof, shall be altered, enlarged, recon- etructed, or used for . . . A. Any industry, trade, manufacturing, or commercial pur- pose; or for 51 i i SAT.RV CM CODE B. Any purpose except one or more of the following specified uses, provided such specified use is not injurious, obnoxious, offen- sive or detrimental to the neighborhood; 1. Single-family detached dwelling, unless otherwise per- mitted by the Board of Appeal under Section 17; 2. Church or other place of worship; 3. Municipal buildings; public or private school, college, museum or other use of an educational character, other than trade and business schools and trade and business colleges; 4. Golf course, tennis court, waterfront yacht club, and any building or structure incidental thereto, and similar rec- reational use,provided it is of.noncommercial character; 5. Public, semi-public or private institution or organization of a philanthropic, charitable or religious character, but not including cemeteries; and not including any such institution or organization which provides for the care or medical treatment of animals on the premises; 6._Hospital a itarium o— r- ot_her_medical_insti�on for fi'uman_treatment or occupancy, but not including nurs- ing and convalescent homes; 7. Farm, market garden or nursery, including the sale of natural products raised on the premises, but not includ- ing any use or the extension of any existing use which would be injurious, obnoxious or offensive to the neigh- borhood; ��-ma— . ' �OfHce or stndio_of_e_physicaan or surgeon;dentist, artist, musician, lawyer, axrhitect, teacher or other like pro- -_. re fessional person located in hu 0 or her ppr rivate sidence, l provided that there is no display visible from the street nor advertising except an announcement sign or a Pro- fessional name plate not larger than 288 square inches attached against the dwelling end not protruding there- from; 9. Customary home occupation carried on for gain in the residence of the occupant, provided there is no display of goods visible from the street nor advertising, except 52 � f I l i `I.CNINC ORDINANCE a small announcement sign having an area of not more than 288 square inches end attached against the dwelling and not protruding therefrom, and provided that such occupation shall be carried on by a person only within a dwelling or apartment used by the occupant as his or her private dwelling, without employment of help, and provided that such occupation shall not occupy more than one-third of the area of his or her residence or apart- ment, and provided that such occupation shall not be carried on in any accessory building; and provided that authorization for such use shall be granted in writing by the Inspector of Buildings; 10. Private garage and such accessory uses as are customary in connection with the foregoing uses and are incidental thereto. Sec. 5. General residence districts—C. In the general residence districts, no new building or struc- ture, or part thereof, shall be constructed or used, and no existing building or structure or part thereof shall be altered, enlarged, reconstructed or used for . . . A. Any industry, trade, manufacturing or commercial purpose, or for B. Any purpose except one or more of the following specified uses: 1. Any purpose or accessory use authorized in the single residence districts; 2. Two-family dwelling; 3. Nursing and convalescent homes for not more than ten patients in dwellings existing on or before January 1, 1954; 4. Alterations for more than two families but in no case ! more than four families in dwellings existing before January 1, 1954 provided that no addition to the build- ing is to be constructed that would result in the building occupying a greater ground area than the existing dwell- ing 53 I i SALEM CITY CODE The Board of Appeal may vary the application of this ordinance in specific cases to allow alterations to provide for an additional apartment or apartments and may also vary the application of this ordinance to allow altera- tions to provide for more than four families, provided the Board of Appeal is unanimous in their opinion that the proposed changes will not be detrimental to the neighborhood or otherwise conflict with the spirit and intent of the Zoning and Building Ordinances. 5. Waterfront boatyards; 6. Group garage; 7. Such accessory uses as are customary in connection with the foregoing uses and are incidental thereto. Sec. 6. .Spartment house districts=D� In the apartment house districts, no new building or structure, or part thereof, shall be constructed, or used,and no existing build- ing or structure or part thereof shall be altered, enlarged, recon- structed or used for . . . A. Any industry, trade, manufacturing or commercial purpose, or for B. Any purpose except one or more of the following specified uses. 1._Any purpose or accessory use authoi edin the single ,general residence districts; 2. Residence for three or more families,lodging house,nnrs- ing or convalescent home, apartment house, apartment hotel or hotel; 3. Trade and business schools and colleges; 4. Club,except a club the chief activity of which is a service customarily carried on as a business; 5. Such accessory uses as are customary in connection with the foregoing uses and are incidental thereto. Sec. 7. Semi-residence districts—E. A. In the semi-residence districts, new buildings and structures 54 1 �P Titu of I�Hlem, massac4usctts Public Propertg Department �?^ iguilbing Department (One Onitm 4kren 5118-7,15-9595 Ext. 380 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer June 30 , 1997 Serafini , Serafini and Darling Attorneys at Law 63 Federal Street Salem, Mass . 01970 RE :�376_Essex—Stree Dear Mr . Correnti : This office has received your letter requesting a Certificate of Occupancy at 376 Essex Street . This office will not issue a Certificate of Occupancy until the resolution of the pending appeal before the Land Court . If this office can be of any further assistance in this matter, please do not hesitate to call . Sincerel Leo E . Tremblay Zoning Enforceme Officer LET: scm cc: Robert LeDoux Councillor Flynn, Ward 2 1 SERAFINI, SERAFINI AND DARLING ATTORNEYS AT LAW 63 FEDERAL STREET SALEM. MASSACHUSETTS 01970 JOHN R. SERAFINI. SR. TELEPHONE JOHN R. SERAFINI, JR. 506.744.0212 JOHN E. DARLING 617.561.2743 ELLEN M. WINKLER TELECO PIER JOSEPH C. CORRENTI June 24 , 1997 506741.4663 Mr. Leo E. Tremblay Building Commissioner City of Salem One Salem Green Salem, MA 01970 RE: Request for Certificate of Occupancy 376 Essex Street, Salem Dear Mr. Tremblay: This letter is to request the issuance of a Certificate of Occupancy for the property located at 376 Essex Street. As you know, a building permit was issued for work to be done at 376 Essex Street on August 15, 1995. The house has a continuous use as doctor' s and professional offices dating back to the 1940 's when it was purchased by John Cunney, M.D. That use has been unbroken through 1995, when the property was purchased by Charter Trust. The proposed use is for Dr. Beverly Shafer to maintain a medical office for her practice only within her private residence at 376 Essex Street. Dr. Shafer has been ready to occupy the premises for well over a year now. All of the construction work has been completed. However, because the zoning for this property has been challenged, first to the Board of Appeal and then to Land Court, no Certificate of Occupancy has been issued. As you know, all of the appropriate departments have signed off on the building permit. Please let me know if you would like to conduct a final walk-through of the building prior to issuing the Certificate of Occupancy, and I will make the appropriate arrangements. Sincerely, CHARTER TRUST By ;its attorney JSEPI C. CORRENTI JCC/ln / * * * * * * * * * * * * * * * * * * * * * * * * IN RE: THE PETITION OF DONALD HODGMAN ET AL --APPEALING THE DECISION OF LEO E. TREMBLAY ZONING ENFORCEMENT OFFICER OF THE CITY OF SALEM CONCERNING 376 ESSEX STREET * * * * * * * * * * * * * * * * * * * * * * * * BRIEF OF CHARTER TRUST CONCERNING 376 ESSEX STREET Submitted On Behalf Of: THE CHARTER TRUST By Its Attorneys, JOHN R. SERAFINI, SR. JOSEPH C. CORRENTI Serafini, Serafini and Darling 63 Federal Street Salem, MA 01970 * * * * * * * * * * * * * * * * * * * * * * * IN RE: THE PETITION OF DONALD HODGMAN ET AL APPEALING THE DECISION OF LEO E. TREMBLAY ZONING ENFORCEMENT OFFICER OF THE CITY OF SALEM CONCERNING 376 ESSEX STREET * INTRODUCTION This brief is submitted pursuant to the request of the Board of Appeal on behalf of The Charter Trust, owner of the property located at 376 Essex Street, concerning this appeal of the decision of the City of Salem Zoning officer. SUMMARY The proposed use of the premises is a continuation of the use allowed in 1955 which became nonconforming in 1965. • There is no "ownership" of the premises requirement under zoning law. Dr. Beverly Shafer will use the premises as her private residence within which she will have her doctor's office. A part-time associate employed by Dr. Shafer, which associate will see patients one day per week, is allowed under Massachusetts caselaw. Under Massachusetts caselaw the proposed use is not a "change or substantial extension" of use which requires a special permit. The proposed use meets the applicable provisions of the Salem Zoning ordinance and is allowed to continue as of right. BACKGROUND In 1941, Dr. John Cunney purchased the property at 376 Essex Street (hereinafter the "premises,") and used the premises as both his residence and as a professional office for his medical practice. Dr. Cunney was a general practitioner with a large practice. He saw patients at the premises on a regular basis for 1 nearly forty years, until 1981, when the premises was sold to the • Reynes, a husband and wife, each of whom were doctors. Additionally, Dr. Reynes purchased the medical practice of Dr. Cunney. The Reynes continued the mixed use of the premises as an office and private residence until 1988, when the premises was sold to the Kirsches. The Kirsches also continued the mixed use of the premises as a professional office and residence until 1995, when the premises was sold to the present owner, the Charter Trust, which also proposes to continue the mixed use of professional office and private residence. This chain of mixed use of the premises, that being professional office in a private residence, has remained unbroken since the early 19401s, some fifty plus years. The proposed use will not change that. In 1955 a revised zoning ordinance was adopted by the City of Salem which in relevant part allows as of right the following use of the premises: City of Salem Zoning Ordinance, Section 4 B.8. (1955) "Office or studio of a physician or surgeon, dentist, artist, musician, lawyer, architect, teacher or other like professional person located in his or her private residence provided that there is no [cumbersome signage or displays] ". Clearly, Dr. Cunney's use of the premises in 1955 fit • within the above-referenced language of the revised ordinance, as he maintained his physician's office within his private residence. Thus, in 1955, the mixed use of the premises became a conforming use under the City's Zoning Ordinance. This changed in 1965, when the next major Zoning Ordinance was enacted. In 1965, the following language was enacted as a Special Permit use in the R-2 Zoning District, which was formerly the Apartment House District, in which the premises is located: City of Salem Zoning Ordinance, Section V,B, l,a. (1965) 111. R-C and R-I Districts: Residential Conservation and One-Family Residential a. Professional offices and other home occupations involving the use of a room or rooms in a dwelling to carry on activities in which goods, wares, or merchandise are not commercially created or handled, provided that any such home occupation: (1) shall be operated entirely within a dwelling unit with no display visible from the street; (2) shall be operated only by the residents of the dwelling unit, with not more than one (1) regular employee not residing in the dwelling unit; • 2 (3) shall utilize not more than twenty-five (25) • per cent of the gross floor area of the dwelling unit; and (4) shall display not more than one non-electric announcement sign on an area not greater than 1 1/2 square feet and attached against the building and not protruding therefrom. " The R-2 District allowed all uses permitted in the R-1 District. This 1965 change conferred on the premises at 376 Essex Street a legal nonconforming status as defined in the City of Salem Zoning Ordinance outlined below. This 1965 language, which imposed restrictions on professional offices and other home occupations, did not apply to the premises because of the following language: Section VIII, E of the 1965 Ordinance entitled "Nonconforming Use of Structure", which states in relevant part that: "If a use of a structure . . . exists that would not be allowed in the district under the terms of this ordinance or amendment, the use may be continued so long as it remains otherwise lawful . . . ." Thus, this is the language which allowed the permitted • mixed use of a professional office located in a private residence to continue from 1965 through 1995 as a legal nonconforming use of a structure without having to obtain a special permit. It is the proposed continuation of this nonconforming mixed use, which both the Zoning Enforcement Officer and the City Solicitor have ruled may continue, that is now being challenged by the Petitioner. DISCUSSION I. THE PROPOSED USE OF THE PREMISES IS ALLOWED AS OF RIGHT WITH NO ZONING RELIEF REQUIRED. The proposed use of the premises is as follows: Ms. Beverly Shafer, a medical doctor, will use the . premises as her private residence; within her private residence she will have her doctor's office. This proposed use is precisely the mixed use which has been continued and which was granted legal nonconforming status subsequent to the 1965 Ordinance being enacted. Since this use has continued from 1965 through 1995 without abandonment, it may continue as of right, without zoning relief until it is legally abandoned. G.L. c. 40A, §6; Salem Zoning Ordinance, Art, . VIII, Sec. 8-5 (6) . • 3 • THE SALEM ZONING ORDINANCE Article VIII, Section 8-5 of the Salem Zoning Ordinance, entitled Nonconforming use of structure, attached hereto as Exhibit 1, is the relevant section of the ordinance in this matter. Section 8-5 states in relevant part that a nonconforming use, i.e. a use which would not be allowed -in the district under today's ordinance, may nevertheless continue subject to the six (6) provisions listed therein. Below is a brief analysis of these six provisions, the last three of which are not at issue, and how, when applied to the proposed use, it will clearly demonstrate that the nonconforming use may continue at the premises as proposed. ARTICLE VIII, Sec. 8-5 Nonconforming use of structure. If a use of a structure or a structure and premises in combination exists that would not be allowed in the district under the terms of this ordinance or amendment, the use may be continued so long as it remains otherwise lawful, subject to the following provisions: (1) No existing structure devoted to a use not permitted by this ordinance in the district in which it is located shall be enlarged, extended, constructed, reconstructed, moved or structurally altered, • except in changing the use of the structure to a use permitted in the district in which it is located. The existing structure at 376 Essex Street is not being enlarged, extended, constructed, reconstructed, moved or structurally altered in any way. The Building Permit issued for the premises was to upgrade the plumbing and electrical services and to install two room partitions. (2) Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this ordinance, but no such use shall be extended to occupy any land outside such building. Again, the nonconforming use is a mixed use of professional office within a private residence. The above language expressly contemplates extending or rearranging uses within different areas of the structure, for example, professional office space on the second floor. Despite this clear language allowing flexible repositioning of uses within the structures, Petitioners argue (1) that present Ordinance provisions for professional offices regulating floor area and non- 4 resident employees apply to this case, and (2) that only the Cunney floor plan as it existed in 1965 is protected by the nonconformity provisions. In answer to the first point, the quoted nonconformity language renders the continued pre-1965 mixed use immune from the 1965 provisions. Immunity from later zoning changes is the essential characteristic of nonconforming status. If provisions of the current Ordinance were construed to this use as Petitioners argue, there would be no need for provisions protecting (as the Ordinance does) prior nonconforming uses, since no such category would be recognized. The 1965 zoning ordinance set restrictions on the number of non-resident employees and the total gross floor area devoted to professional office use within a dwelling. Prior to 1965 there were no such restrictions. As to the second point, the Petitioner is now attempting to retroactively place such restrictions on the pre-1965 use by arguing that a particular "floor plan" is what was preserved and that any change to Dr. Cunney's 1965 "floor plan" requires a special permit. This is contrary to the above-quoted language, and there is no other basis in G.L. c. 40A or the Salem Zoning Ordinance for such an argument. It is not a 1965 "floor plan" which was granted legal nonconforming status, but rather it was the use of a professional office within a private residence which was granted such status. Finally, none of the proposed use shall occupy any land outside the building. (3) On any building devoted in whole or in part to any nonconforming use, work may be done in any period of twelve (12) consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixture, wiring or plumbing to an extent not exceeding ten (10) percent of the current replacement value of the . building, provided the cubic content of the building as it existed at the time of passage or amendment of this ordinance shall not be increased. On August 15, 1995, Building Permit No. 430-95 was issued for the premises for the following renovation work: 5 • 1. new electrical service; 2. new plumbing; and 3. new walls. The work to the electric and plumbing service was to upgrade the existing service as well as integrate a new handicapped accessible bathroom as required by state law. The --"new walls" were two non-bearing wall partitions as well as the new walls installed in the handicapped bathroom. The total cost of improvement was $55,000.00, which is well below ten percent (10%) ($95,350.00) of the current replacement value of the structure of $953,500.00. (See Exhibit 2 attached hereto, Duplication Cost Estimate of Panakio Adjusters dated November 20, 1995. ) Finally, the cubic content of the building has not been increased. (4) If no structural alterations are made, any nonconforming use of a structure or structure and premises may be changed to another nonconforming use, provided that the board of appeals, either by general rule or by making findings in the specific case, shall find that the proposed use is equally appropriate or more appropriate to the district than the existing nonconforming use. In permitting such change, the board of appeals may require appropriate conditions and safeguards in accord with the provisions of this ordinance. This section is not applicable, as there is no change of use to another nonconforming use. (5) Any structure or structure and land in combination in or on which a nonconforming use is superseded by a permitted use shall thereafter conform to the regulations for the district in which such structure is located, and the nonconforming use may not thereafter be resumed. This section is not applicable, since the nonconforming use has continued without interruption from at least 1955 through 1995. (6) Any nonconforming use of land or structure and any nonconforming structure shall lose whatever rights might otherwise exist to its continuation under this section if said use or structure shall be abandoned or not used for a period of two (2) years or more. The nonconforming use has been continuous since at least 1955 and, therefore, has not been abandoned. • 6 • In conclusion, all six provisions of this section have been met by the proposed use. The introductory paragraph of Section 8-5 states in relevant part that "the (nonconforming] use may be continued so long as it remains otherwise lawful . 11 and subject to the six provisions listed above. In order to keep the use "otherwise lawful", the installation of the handicapped accessible bathroom, the --handicap ramp and the interior exit signs were required by the Building Inspector pursuant to the applicable State Codes. Therefore, the requirements of the Ordinance to allow the continuation of a nonconforming use have been met, and the use as proposed may continue. II. "YEAS, BUT IS SHE GOING TO LIVE THERE?" A. OWNERSHIP REQUIREMENT In their Petition to the Board, the Petitioners have asked that a Certificate of Occupancy issue for the premises with the restriction that it be only for a portion of the structure as a professional office by an individual residential owner of the premises. The Petition goes on to recite in paragraphs 2 and 3 that the physician must be the owner of the premises for a Certificate of Occupancy to issue. • Apparently the Petitioners' argument is that since Dr. Cunney was the owner of the premises in 1965, that the element of "ownership" became part of the allowed nonconforming use after the 1965 Amendment. However, this simply is not what the Zoning Ordinance says. The language from the 1955 Ordinance in relevant part reads as follows: Allowed use: "Office or studio of a physician or surgeon . . . located in his or her private residence . . . . " (emphasis added) This is the use language which allowed Dr. Cunney to maintain his office in the premises and this is the use which attained its current nonconforming status after the 1965 Ordinance was enacted. In analyzing this use, there is no requirement of ownership of the structure. The fact that Dr. Cunney was an owner is legally insignificant. Nowhere in the Salem Zoning Ordinance, past or present, is ownership of a structure a prerequisite to use of a structure. If there were such a requirement, property title examinations to determine owners of record would be a required and routine process for the Zoning Enforcement Officer and this Board of Appeal. Such a requirement would mandate looking at the property titles of • hundreds of properties which currently enjoy nonconforming use 7 . status throughout the City on a continuous basis. Of course, there is no such requirement and a plain reading of the Ordinance makes this clear. The Petitioners have attempted, in effect, to create an artificial zoning requirement, namely "ownership", and then argue that the proposed use doesn't fit into that requirement. Again, there is no basis in the Ordinance supporting this argument. The Petition is flawed in this regard. B. RESIDENCE REQUIREMENT It is clear from reading the 1955 Ordinance that the professional office must be located in the "private residence" of the physician or surgeon. Will the premises be the "private residence" of Dr. Shafer? Yes, it will. Does it need to be her "principal residence", "permanent residence" , "primary residence", "sole residence", or "domicile"? No, it does not. • Several of these terms have legally distinct meanings, but to understand the term "residence" it is helpful to look at how the Massachusetts Courts have defined it. Clearly, the cases and the law have long determined that a Person may have more than one residence at one time. A person may have a residence in one place and his permanent home or domicile in another. Hopkins v. Commissioner of Corporations and Taxation, 320 Mass. 168; 68 N.E.2d. 659 (1946) ; A person can have only one domicile at one time, regardless of how many places of residence he may maintain. Worcester County Trust Co. v. Lona, 14 F.Supp. 754, rev'd on other grounds 89 F.2d. 59, aff'd. 302 U.S. 292 (D.C. 1936) ; Rummel V. Peters, 314 Mass. 504 (1943) ; Residence was the circumstance in considering domicile, but was not conclusive. Hutchins v. Browne, 253 Mass. 55, 147 N.E. 899 (1925) ; One does not lose his domicile by a temporary residence elsewhere. Rolf v. Walsh 318 Mass. 733, 64 N.E.2d. 16 (1946) . • 8 4S Also, attached to this Brief as Exhibits 3 and 4 are • copies of exhibits previously submitted to the Board which define and distinguish the terms "domicile" and "residence". Dr. Shafer will use the premises as her "private residence" where she will live, eat and sleep on a regular basis for an indefinite period, and she will have her professional office within that residence. III. THE PROPOSED USE OF THE PREMISES IS NOT A CHANGE OR - SUBSTANTIAL EXTENSION FROM THE ALLOWED NONCONFORMING USE. The allowed nonconforming use is a professional office within a private residence. The Petitioners have argued that the proposed use is a change or substantial extension from the allowed nonconforming use, and thus a special permit is required. In order to demonstrate such change or substantial extension of the use, the Petitioners point to floor plans of the premises submitted with the application for the Building Permit. The Petitioners allege that since more gross floor area is being dedicated to the office, then a change or substantial extension of the use has occurred. Petitioners also cite Dr. Shafer's plan to have a part-time assistant as demonstrating this impermissible expansion. However, there is no legal basis for this conclusion. • The Petitioners continue to ignore the statements of Dr. Shafer and the owner of the property as to what her office use of the premises will be; that is, seeing patients a total of three days per week for an average of twenty (20) to twenty-two (22) hours per week. In earlier litigation of this matter, two of the petitioners submitted a sworn Affidavit to the Superior Court, attached hereto as Exhibit 5, which in paragraph 4 states that the prior owner of the premises saw clients at the premises "no more than twenty hours per week." Apparently this statement was offered to demonstrate an "acceptable" use of the premises. Dr. Shafer's proposed use is to see patients twenty to twenty-two hours per week. Additionally, on May 8, 1973, the City of Salem Board of Assessors inspected the premises and determined that at that time "approximately fifty percent of the living area" of the premises was being "used for commercial purposes, namely a doctors office. " (see Letter of Board of Assessors dated October 5, 1995, attached hereto as Exhibit 6. ) The Massachusetts courts have several clear tests to distinguish permissible extensions of a nonconforming use from impermissible extensions, and when reviewed in conjunction with the above-stated facts, it becomes clear that there is no change or substantial extension of the nonconforming use. • 9 A. DETERMINING A CHANGE OR SUBSTANTIAL EXTENSION OF USE. • The Massachusetts Supreme Judicial Court in the case of Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973) established three tests for determining whether an alteration of a non-conforming use constitutes a "change or substantial extension" of such use that will subject the resulting use to the application of the current zoning laws, _. i.e. whether the use will lose its protected nonconforming status. The Powers case established that a nonconforming use continues unless: 1. the resulting use does not reflect the nature and purpose of the non-conforming use prevailing when the zoning laws took effect, 2. there is a difference in the cuality or character, as well as the degree, of the resulting use, or 3. the resulting use is different in kind and its effect on the neighborhood, then the current zoning laws are applicable to the resulting use. Powers at 653; see also Cape Resort Hotels, Inc. v. Alcoholic Licensing Board of Falmouth, 385 Mass. 205 (1982) ; Building Inspector of Groton v. Vlahos, 10 Mass. App. Ct. 890, 891 • (1980) . Each of these three Powers tests has received extensive judicial consideration and will be discussed below. 1. DIFFERENT "NATURE AND PURPOSE" OF USE It has been held in cases that all of the following do not constitute a change or substantial extension of the non-conforming use that would subject the resulting use to the current zoning laws. Despite an increase in volume from the prior non-conforming use, or an extension of hours or periods of operation, a resulting use may still be deemed to reflect the same nature or purpose that previously existed. an increase in the volume of business of a junkyard, Building Inspector of Seekonk v. Amaral, 9 Mass. App. Ct. 869 (1980) ; an increase in the number of customers, Selectmen of Blackstone v. Tellestone, 4 Mass App. Ct. 311, 315 (1976) ; an increase in the volume and variety of goods sold, • Powers; and 10 • the change from a seasonable motel to a year-round operation McAleer V. Board of Appeals of Barnstable, 361 Mass. 317 (1972) . Furthermore, alterations in the manner of use to increase efficiency, such as the deployment of improved equipment or more efficient equipment-do not necessarily constitute a change in the nature and purpose of the undertaking. The rule appears to turn on whether the alterations are ordinarily and reasonably adapted to the original use. In the present case, the alterations for which a building permit was issued were to upgrade the electrical service and the plumbing and to install two partition walls and a handicap bathroom. These alterations were made to modernize the premises so as to be able to continue the original use of a doctor's office. 2. DIFFERENT "QUALITY CHARACTER OR DEGREE" OF USE The second Powers test provides that the current zoning laws apply to the alteration of a non- conforming use if the resulting use constitutes a change in the quality or character, as well as the degree, of the prior non-conforming use. This test is similar to • the first Powers test, and the courts have tended to discuss both tests simultaneously. The cases discussed below, however, have placed more emphasis on the second Powers test. Situations in which it was found that the changed uses were not different in quality or character, and thus were upheld, include the following: an increase in the volume of wholesale and retail sales, as well as an increase in the number of products manufactured on the premises; Powers, supra; an increase in the number of trucks and buses stored on premises originally used for the storage of busses and trucks; Blackstone, supra; the change from the storage of fuel products to storage of petroleum derived building materials, Derby Ref. Co. v. Chelsea, 407 Mass. 703 (1990) . A difference in the degree of use is not, by itself, critical. Generally, a "mere increase in the amount of business done, even a great increase would not work a change in use." Marblehead v. Rosenthal, 316 Mass. 124, 128 (1944) . • 11 In the present case, it is clear that the general practice of Dr. Lunney involved seeing patients more than three days per week. 3. DIFFERENT EFFECT ON NEIGHBORHOOD The third Powers test provides that the current zoning laws apply to the alteration of a non-conforming use if the resulting use differs from the prior non- conforming use in its effect on the neighborhood. Only an increase in the severity of the adverse aspects of the use will trigger a "different in kind" holding. A resulting use that produces dust, fumes and noise will not necessarily be found to be different in kind in the effect on the neighborhood, if the prior non-conforming use similarly produced dust, fumes and noise. Derby Ref. Co. , supra at 717. A long line of Supreme Judicial Court opinions have established that the existence of a lawful non-conforming use does not permit the erection of additional structures for extension of the use, absent express authorization by the local zoning law. Of course, no such additional structures are proposed in the present case. Again, the effect on the neighborhood from the proposed use is likely to be less severe than the original use due to the restricted days and hours in which patients are expected to be seen. The full-time • general practice as conducted by Doctor Cunney involved seeing patients every day with the possible exception of weekends. Finally, Dr. Shafer currently conducts her practice within the very same neighborhood, and has for a number of years without complaints from anyone. It is this practice that is literally moving across the street. Lastly, the Petitioners also argue that because Dr. Shafer has an assistant physician who sees patients one day per week (in addition to Dr. Shafer seeing patients two days per week for a total of three days) that this is a change or substantial extension of use. The 1955 Ordinance states the "office of a physician or surgeon", is allowed, indicating a singular usage. However, caselaw has addressed just this issue, and as it relates to accessory professional office use has found that the use of assisting personnel, equipment and facilities which are reasonably necessary for the professional practice are allowed and are not considered an expansion or change of use. Framingham Clinic v. zoning Board of Anneals of Framingham, 382 Mass. 283, 292-293 (1981) . - Thus, the question becomes one of "reasonable necessity" for the practice of a modern-day surgeon. It . is, in fact, reasonable to have a part-time associate to 12 run a professional office, and the City Solicitor, in his opinion dated December 8, 1995, has stated that a part- time associate may participate in the proposed use. The caselaw has also discussed change in uses which do result in the need for zoning relief. The majority of the decisions under the Powers test which were deemed by the courts to result in a change of use involved the construction of additional structures or structural renovation and expansion of existing structures so as to often times be able to conduct a completely different type of business. Examples of such changes of use include the following: the changing of a tailor shop into a dry cleaning business; Marblehead v. Rosenthal 316 Mass. 124 (1944) construction of new buildings at a slaughterhouse; Inspector of Bldgs v. Rosenthal 320 Mass. 207 (1946) change of apartment building into a motel; Ancxus v. Miller 5 Mass. App. Ct. 470 (1977) change of a hotel to night clubs; and a change of a dormitory to hotel rooms; Cape Resort Hotels. Inc. v. Alcoholic Licensing Bd. of Falmouth 385 Mass. 205 (1982) What is proposed at the premises is not a change or substantial expansion in use under the Powers test as applied but rather a continuation of the professional office use in existence for over fifty years. CONCLUSION For all of the foregoing reasons, the Petition appealing the decision of the Zoning Enforcement Officer must be DENIED, and a Certificate of Occupancy for the proposed use should issue. Respectfully submitted, THE CHARTER TRUST By Its Attorney, qbgN SERAFINI, SR. SEP C. CORRENTI Serafini, Serafini and Darling 63 Federal Street Salem, MA 01970 13 • LIST OF EXHIBITS 1. Exhibit 1, Salem Zoning Ordinance Article VIII, Section 8-5 entitled Nonconforming use of structure. 2 . Exhibit 2, Duplication Cost Estimate of Panakio Adjusters dated November 20, 1995. 3. Exhibit 3, Definition of the Term "Domicile" . 4. Exhibit 4, Definition of the Term "Residence". 5. Exhibit 5, Affidavit of Steven K. Gregory and Mary Kathryn Bratun. 6. Exhibit 6, Letter of Board of Assessors dated October 5, 1995. • i G r da_ .m .�_ µ. ..._ EXHIBIT 1 4G ORDINANCE Art.VIII,§8-5 Art.VIII.§8-5 SALEM ZONING ORDINAN( • increased in height, except as provided for done in any period of twelve (12) consecu- in section 8-6. However, if such structure tive months on ordinary repairs, or on re- used for single- or two-family residential pair or replacement of nonbearing walls, purposes can be enlarged or altered in con- fixtures, wiring or plumbing to an extent formity with the lot coverage, front yard, not exceeding ten (10) percent of the cur- side yard, rear yard and distance require- rent replacement value of the building,pro- ments of Table I of Article VI,said enlarge- vided the cubic content of the building as it ment or alteration shall not be deemed an existed at the time of passage or amend- increase in the nonconformity of the struc- ment of this ordinance shall not be in- ture and permissible even though the lot creased. area and lot width are nonconforming. (4) If no structural alterations are made, any (2) Should such structure be destroyed by any nonconforming use of a structure or struc- means to an extent of more than fifty (50) ture and premises may be changed to an- percent of its replacement cost or more than other nonconforming use,provided that the fifty(50)percent of its floor area at the time board of appeals, either by general rule or of destruction,it shall not be reconstructed by making findings in the specific case, except in conformity with the provisions of shall find that the proposed use is equally this ordinance. appropriate or more appropriate to the dis- trict than the existing nonconforming use. (3) Should such structure be moved for any In permitting such change,the board of ap- reason for any distance whatsoever,it shall peals may require appropriate conditions thereafter conform to the regulations for and safeguards in accord with the provi- the district in which it is located after it is sions of this ordinance. moved. (5) Any structure or structure and land in com- bination in or on which a nonconforming •c. 8-5. Nonconforming use of structure. use is superseded by a permitted use shall If a use of a structure or a structure and pre- thereafter conform to the regulations for miles in combination exists that would not be al- the district in which such structure is lo- lowed in the district under the terms of this ordi- cated, and the nonconforming use may not nance or amendment, the use may be continued thereafter be resumed. so longus it remains otherwise lawful, subject to (6) Any nonconforming use of land or struc- the following provisions: ture and any nonconforming structure shall (1) No existing structure devoted to a use not lose whatever rights might otherwise exist permitted by this ordinance in the district to its continuation under this section if said in which it is located shall be enlarged,ex- use or structure shall be abandoned or not tended, constructed, reconstructed, moved used for a period of two (2)years or more. or structurally altered, except in changing the use of the structure to a use permitted Sec. 8.6. Board of appeals; granting special in the district in which it is located. permits. (2) Any nonconforming use may, be extended Notwithstanding anything to the contrary ap- throughout any parts of a building which pearing in this ordinance, the board of appeals were manifestly arranged or designed for may grant special permits as authorized by sec- such use at the time of adoption or amend- tion 5-30) and section 9-4 herein when the same ment of this ordinance,but no such use shall may be granted without substantial detriment to be extended to occupy any land outside such the public good and without nullifying or substan- building. tially derogating from the intent and purpose of this ordinance. (3) On any building devoted in whole or in part to any nonconforming use, work may be • 52 51 A�L�AW��6AL 222 Q51D ED11 R��YCL�D EXHIBIT 2 _I ,e Panakio Adjusters adjuster's and appraisers - � for tFie public November 20, 1995 Director of Facilities NORTH SHORE MEDICAL CENTER, INC. 81 Highland Avenue Salem, Massachusetts 01970 ATTENTION: Mr. Donald DiPanfilo Director RE: DUPLICATION COST ESTIMATE 376 Essex Street Salem, Massachusetts 01970 Dear Mr. DiPanfilo: Pursuant to your request, kindly be advised that I personally inspected the above captioned premises on November 7 & 14, 1995 to inspect the specifications for estimating the duplication cost of the building. The building consists of a 2 1/2 story frame, premium quality Victorian dwelling in excellent rehabilitated condition, constructed after the turn of the century. The property is unique starting with its' high ceiling line to its' exotic wood finishes. The cost by today's standard would be prohibitive to duplicate its many improvements including exterior cornice trim and Vermont Slate roof, together with exotic gumwood mantle facades, cornice trim, oak raised panel wainscot and oak panel doors. The specifications and appointments are listed separately in this report. The estimated cost for duplicating this building is .twice the cost of a more conventional property. This cost is based upon my experience as a contractor, adjuster and appraiser with over forty years experiences. The duplicating estimated cost calculations are illustrated on the following pages. It is my opinion that the estimated duplicating cost of the building located at 376 Essex Street, Salem, Massachusetts as of the date of inspection is approximately ($953, 500) Nine Hundred Fifty Three Thousand Five Hundred Dollars Res . ep ctfully bmitted LOUIS J. A I0, JR J 465 WASHINGTON STREET LYNN,MASSACHUSETTS 01901 .x(61 7) 592-757'5---"FAX(61 7) 593-81 31 ALT STATE LE�EAL .�Ill Sll� �Dll y '. Domicile i = "Domicile"and "Residence" are not identical terms, i for a person may have two places of residence, as in the city and in the country, but only one domicile. Residence means living in a particular locality, but H domicile means living in that locality with intent H W H x to make it a fixed and permanent home. A person may have only one legal domicile at one time, but he may have more than one residence. Black's Law Dictionary, Fifth Edition 1979 MG.L.A. c.1, sec. 1 e • • t • s • Residence Personal presence at some place of abode with no present intention of definite and early removal and with purpose to remain for undetermined period, not infrequently, but not necessarily with design H to stay permanently. . . Residence implies something more x i than mere physical presence and something less than domicile. Black's Law Dictionary, Fifth Edition 1979 MG.L.A. c.1, sec. 1 0 0 t S r • • a • IWO EXHIBIT 5 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss SUPERIOR COURT CIVIL ACTION NO. ESSEX STREET NEIGHBORHOOD ) HOMEOWNER'S ASSOCIATION ) - Plaintiff, ) AFFIDAVIT OF V. ) STEVEN K. GREGORY AND MARY KATHRYN BRATUN LINDA W.NICHOLS, TRUSTEE, ) CHARTER TRUST, CHARTER TRUST, ) Defendants. ) I, Steven K. Gregory and Mary Kathryn Bratun,under oath do hereby depose and state: 1. My name is Steven K. Gregory and my name is Mary Kathryn Bratun. We are husband and wife and reside at 141 Federal Street, Salem, Massachusetts. We are rear abutters to 376 Essex Street, Salem,Massachusetts, (hereinafter"the Property'. We have lived at • this address for seventeen(17)years. 2. We are members of the Essex Street Neighborhood Homeowner's Association. 3. We were friends with the two prior owners of the property and were in the Property from time to time. We know that both the Reins,who owned the property from approximately 1981 to 1987 and the Kirchs,who owned the property from 1987 to 1995, utilized a portion of the house for a small office to see patients. 4. Most recently, Catherine Hicks-Kirsch used one room in the rear of the house for a small office,where, as a licensed social worker she saw clients. We know that Ms. Hicks- Kirsch was adamant about her use, and limited her client load to no more than twenty hours per week. 5. All of Ms. Kirsch's clients parked on Essex Street. 6. We were under the impression that Dr. Beverly Shafer had purchased the Property. 7. Since Dr. Shafer purchased the property, we have observed major construction and reconstruction occurring on the Property. We have since discovered that Dr. Shafer is not the owner of the Property,but a Trust is the owner of the Property. • 8. I, Steven, am a former professor of architecture at the University of Utah,and formerly a professor at MIT of computer aided design; and am president of the New England Technology Group. --:EXHIBIT t 9. Based on my background, I know that the large thirty(30') foot dumpsters I have seen removing construction debris indicate that the construction occurring on the property is far in excess of normal residential renovation,unless there were major floor plan renovations. 10. From our kitchen window, we can see that the former family room has been subdivided into small rooms using metal studs. 11. The use of metal studs fomes d ntial construction is highly unusual, and is more in keeping for commercial purposes. cv4-'r 12. A new entrance has been constructed in the property, and a handicap ramp has been built. 13. During the time Ms. Hicks-Kirsch used a portion of the property for her office, the re-E-'r entrance which has been reconstructed was never used for clients,but was the family entrance. Dave become 14. The rear yard appears to a parking lot,which will certainly impact on our back yard. • 15. We,along with a number of other neighbors wrote a letter to Dr. Shafer expressing our concern over the use of the property and tried to clarify some of our questions. A copy of this letter is attached hereto as Exhibit A. 16. Neither we, nor any other of the neighbors have received a response to our letter. 17. We do know that since we delivered the letter,that there has been an increase in building activity,to the point that the workers installed flood lights to assist them when it became dark and have worked nights and weekends. 18. We believe that this intensified commercial use of the property detracts from the essential residential nature of the community. We believe that the renovation work should cease until it can be determined who owns the Property and what the use of the Property is to be. Signed under the pains and penalties of perjury, this /rDay of October, 1995. StevenX. Gregory Mary I4atk erine Bratun K 2 9 co EXHIBIT 6 BOARD OF ASSESSORS 93 WASHINGTON STREET,CITY HALL,SALEM,MASSACHUSETTS 01970-3595 Sa' (508)745-9595 Ext.261 (508)744-2069 Fax October 5, 1995 Atty.John R. Serafini Sr. 63 Federal Street Saiern MA 01970 Re: 0376 Essex Street(Assessors Parcel#25-0207) Dear John: The Board has reviewed its records regarding the above property and has found that upon inspection of the property by the Board on May 8, 1973,the property was at that time found to be partially used for commercial purposes, namely a doctor's office. It was estimated at that time that approximately fifty percent of the living area in the property was being so used Please feel free to contact me if 1 can be of any further assistance in this matter. Very truly,yfi Peter M. Caron Chairman 4�, I 19 Gly 13 � l Z The Commonwealth of Massachusetts (iECEiVE of Board of Building Regulations and StandarOSPECTIONAL S_to,V til W Massachusetts State Building Code, 780 CMR Revised Star 1011 Building Permit Application To Construct, Repair, Renovate HipolislQa I: I 9 One-or Tivo-Family Dwelling This Section For-Official Use Onl" (� Building Permit Number: Date.Applied: ' 1z z Is C` � DuilJing 011iicial(Print Name) Signature Date SECTION 1:SITE INFORtIMATf0 C1� I.1 Property Address: EA s Flap Ji Parcel Numbers S_�fe � 41" t 1 .Inis an acce ted street?yes no Parcel Number ing Information: y Dimensions: strict <' Proposed Use ) Frontage(R) ing Setbacks(n) .Front Yard'.. - Side Yaiib Rear Yard a Provided Required P.roviJed- RequiredProviJed r Supply:(M.G.L c.40,§54) L7 Flood Zone Information: 1.8 Sewage Disposal System: Private O.- Zone: _ Outside Flood Zone? Municipal O On site disposal system -OCheck if "C .SECTION. rs of Record: G9--o N�me(Print) Ctty,$Iste,ZIP Sic`( No.anJ Street Telephone "' Email AdJrcss ' SECTION 3:DESCRIPTION OF i?ROPOSED WORW(check all that apply)` New Construction O Existing Building 13 Owner-Occupied O -Repairs(s) ❑ Alteration(s) 0 Addition O Demolition O Accessory Bldg.0. . Number of Unita_ Othu O Specify: Brief Description of Proposed Work=: ��`� g1L� SECTION 4:ESTENIATED CONSTRUCTION COSTS hens Estimated Costs: Official Use Only Labor and Materials I. Building $ - 1. Building Permit Fee:S.Indicate how ree is determined: 0 Standard Cityfrawn Application Fee 2.Electrical S 0 Total Project Cose(item 6)x multiplier x 3. Plumbing S 2!t Qther Fees: S 4.Mechanical (HVAC) S List: 5.Mechanical (Fire S Total All Fees:S Su ression) Check No. Check Amount Cash Amount 6.'rotul Project Cost: S (j 4W 0 Paid in Full ❑Outstanding Balance Due: 7' (L- R-156 - Sq't 3 S'Ib C4--),uE0 SECTION 5: CONSTRUCTION SERVICES I' 5.1 Construction Supervisor License(CSL) t 1 mom' - License Number Expiration Date Name ofCSL ^Holder List CSL Type(see below) Type. - -_ Description No.and Street U Unrestricted(Buildings u i to 35,000 cu.11. �ff� Gigue R Restricted 1&2 Family Dwelling City/rown,State,ZIP M Masonry RC Roolina Coverin _ WS Window and Sidirut _SF Solid Fuel Burning Appliances Insulation -Telephone Email address D I Demolition 5.2 Registered Home Improvement Contractor(HIC) 12, 35 3 ) HIC Registration Number Expiration Dale IlitCornpany NameC eegisstrraa'n;Namee 'SGXV'36'� G t"Cy1 No.attd Street`` Email address Ci /Town State ZIP Telephone SECTION 6:WORKERS'COMPENSATION INSURANCE AFFIDAVIT(M.G.L 25C(6)}, Workers Compensation Insurance affidavit must be completed and submitted with this application. Failure to provide this affidavit will result in the denial of the Issuance of the building permit. Signed Affidavit Attached? Yes..........❑ No...........O SECTION 7a:OWNER AUTHORIZATION TO BE.COMPLETED.W HEN' OWNER'S AGENT OR CONTRACTORAPPEIERFOR BUILDING PERMIT- 1,as Owner of the subject property,hereby authorize � `*N S52 t9 act on my behalf,in all matters relative to work authorized by this building permit application. 0'.1 . t2lzl Is' Print Owner's Name(Electronic Signature) Date SECTION 7b:OWNERI OR AUTHORIZED AGENT DECLARATION By entering my name below,I hereby attest under the pains and penalties of perjury that all of the information contained in this application is'true and accurnte to the-best of my knowledge and understanding. Print Owner's or Authorized Agent's Name(Electronic Signature) Date NOTES: I. An Owner who obtains a building permit to do his/her own work,or an owner who hires an unregistered contractor knot re Listy ered in the Home Improvement Contractor(HIC)Program),will LW have access to the arbitration program or guaranty fund under M.G.L.c.T42K.Other Important inform 1a on on theHTCProgmm can Ge o�`un"t--— www rnass.eov:'oca Information on the Construction Supervisor License can be found at AAAIIIas� 2. When substantial work is planned,provide the information below: 'notal floor area(sq. ft.) '} (including garage, finished basementiattics,decks or porch) Gross living area(sq. 11.) Habitable room count Number of fireplaces Number of bedrooms Number of bathrooms Number of half/baths type of heating system Number of decks/porches 'type of cooling system Enclosed Open 1. -rotas Project Square Foomge"may be substituted fur"'rutal Project Cost" 'Phe Commonwealth of Massachusetts FECEIiI Board of Building Regulations and Standards ""3 C '0' I IGE / 780 CMR SAL ivy / Massachusetts State Building Code, Revised,Nar 101! Building Permit Application To Construct, Repair, Renovate Or DemoWaD � —2 P 1: 1 one-or Two-Family Dwelling ---777'—This For.Official Use Onl C� Building Permit Number: Date.Applied: 49 -Building 011icial(Pont Name). - . Signature` ' - Dale ( SECTION t:SITE INFOWHATION' 1.1 Property Address: 1.2 Assessors Map dl:Parcel Numbers 81!2 I.to Is this an accepted street9 es no bicep Number Parcel Number 1.3 Zoning Information: - 1.A Property Dimensions: - r Zoning District Pipposed Use - Lot Area is II) - Frontage(R) - - 1.5 Building Setbacks(R) - From Yard -Side Yaol} Rear Yord. .. Required Provided Required Prov did Required Provided 1.6 Water Supply:(M.G.L c.40,§5J) 1.7 Flood Zone Information: 1.8 Sewage Disposal System: Public❑ - Private O. Zone: _ Outside Flood Zone? Municipal O On site disposal system D - fheck if esD. SECTION I: PROPER wNERSHle 2.1 Owner'of Record: to(Print) _ City.State,ZIP 3�Ko ez s-1- Ursa t� t5 Df31'iSv- -'(@� No.and Street Telephone Email Address SECTION 3.:DESCRIPTION OF PROPOSED WORKS(check all that apply) New Construction O Existing Building O Ownerr0ccupied D -Repain(s) O Alterations) D Addition O Demolition O Accessory Bldg.D Number of Units_ I Other D Specify: Brief Description of Proposed Work': Q.a-- PAQQkf Ng,ti SECTIOi)4: ESTINIATED CONSTRUCTION COSTS IteiuEstimated Costs: Official Use Only Labor and INIaterials I. Building g I. Building Permit Fee:E Indicate how fee is determined: D Standard Cityaawn Application Fee. 2.Electrical S ❑Tota(Project Cosh(Item 6)x multiplier x 3. Plumbing S k Qther Fees: S d.Slev:hanical (FIVAC) S List: 5.Mechanical (Fire S 'Dotal All Fees:S Su ression) Check No. Check Amount: Cash Amount:_ 6.Total Project Cost: ❑Paid in Full 0 Outstanding Balance Due: SECTION 5: CONSTRUCTION SERVICES 5.1 Construction Supervisor License(CSL) 1 License Number Expiration Date Name of CSL Holder List CSL'fype(see below) y N�� Gtr Type. Description . No.and Street U Unrestrictedaced 2 Family Lip-to r3n_, cu. Il. R Restricted Idt2 Famil D+vellin 61yfrown,State,ZIP M Masonry RC Roaring Covering WS Window and Siding SF Solid Fuel Burning Appliances 1 I Insulation Tcic hung Email address D I Demolition 5.2 Registered Home Improvement Contractor(HIC) 1L3S53 , / /, t owb ��Eo JA I'mC kO — HIC Registration Number Expiration—Date MC Cum any Name or HIC Registrant Name o;ZcN ?,GCo o' �IJE�E2�CJI \ No.and l\ p1A ��Q -O �1LGg� Email address Ci /Town State ZIP Telephone SECTION 6:WORKERS'.COMPENSATION INSURANCE AFFIDAVIT(M.4 .Lc.62.§2$C(6)), Workers Compensation Insurance affidavit must be completed and submitted with this application. Failure to provide this affidavit will result in the denial of the Is§uance of the building permit. Signed Affidavit Attached? Yes ..........0 No...........O SECTION 7a:OWN ER AUTHORIZATION TO BE.COMPLETED.WHEN=.,_ OWNER'S AGENT OR CONTRACTOR APPLIES FOR BUILDING.PERMIT' [,as Owner of the subject property,hereby authorize t9 act on my behalf,in all matters relative to work authorized by this building permit application. �i 25 l Print O+vner's Nano(Electronic Signature) Date SECTION 7b:OWNER!OR AUTHORIZED AGENT DECLARATION By entering my name below,I hereby attest under the pains and penalties of perjury that all of the information contained in this application is true and accurate to the best of my knowledge and understanding. Print Owner's or Authorized Agent's Name(Electronic Signature) Date NOTES: I. An Owner who obtains a building permit to do his/her own work,or an owner who hires an unregistered contractor (not registered in the Home,improvement Contractor(111C)Program),will eo have access to the arbitration program or guaranty fund under M.G.L.c. IId2A.Othei importan[mformaTion oolheNiCProgram can —t`atiadT ww+v mass eov.'oca Information on the Construction Supervisor License can be-found at www.nnass.eov,'dns 2. When substantial work is planned,provide the information below: 'total floor area(sq. ft.) 'A (including garage,finished basement/attics,decks or porch) Gross living area(sq. ft.) Habitable room count Number of fireplaces Number of bedrooms Number of bathrooms Number of half/baths 'type of heating system Number of decks/porches Type of cooling system Enclosed Open ). "notal Project Square Footage"may be substituted for"f utal Project Cost" CO T L { Salem Historical Commission 120 WASHINGTON STREET, SALEM, MASSACHUSETTS 01970 (979)619-5685 FAX(978)740-0404 CERTIFICATE OF APPROPRIATENESS It is hereby certified that the Salem Historical Commission has determined that the proposed: ❑ Construction ❑ Moving ❑ Reconstruction P�k Alteration ❑ Demolition ❑ Painting ❑ Signage ❑ Other work as described below will be appropriate to the preservation of said Historic District, as per the requirements set forth in the Historic District's Act (M.G.L. Ch. 40C) and the Salem Historic Districts Ordinance. District: McIntire Address of Property 376 Essex Street Name of Record Owner: David Askey & Shumei Yin Description of Work Proposed: Restoration of the carriage house facades and roofper the application dated 10/1/15 and drawings by Seger Architects, Inc. dated 9/30/15. Dated: October 26, 2015 SALEM HISTORICAL COMMISSION By:��12,e, +�`a-V4 4130, The homeowner has the option not to commence the work (unless it relates to resolving an outstanding violation). All work commenced must be completed within one year from this date unless otherwise indicated. THIS IS NOT A BUILDING PERMIT. Please be sure to obtain the appropriate permits from the Inspector of Buildings (or any other necessary permits or approvals)prior to commencing work. .�0 T Salem Historical Commission 120 WASHINGTON STREET, SALEM, MASSACHUSETTS 01970 (978)619-5685 FAX(978)740-0404 CERTIFICATE OF NON-APPLICABILITY It is hereby certified that the Salem Historical Commission has determined that the proposed: ❑ Construction ❑ Moving ❑ Reconstruction ❑ Alteration ❑ Demolition ❑ Painting ❑ Signage 9 Other Work as described below does not involve an exterior architectural feature or involves a feature covered by the exemptions or limitations set forth in the Historic District's Act (M.G.L. Ch. 40C) and the Salem Historic Districts Ordinance. District: McIntire Address of Property: 376 Essex Street Name of Record Owner: David Askey and Shumei Yin Description of Work Proposed: Replace existing wooden gutters with fiberglass gutters. The gutters are not visible from the public way. Dated: October 26 2015 SALEM HISTORICAL COMMISSION Bim_ _: �- The homeowner has the option not to commence the work (unless it relates to resolving an outstanding violation). All work commenced must be completed within one year from this date unless otherwise indicated. THIS IS NOT A BUILDING PERMIT. Please be sure to obtain the appropriate permits from the Inspector of Buildings (or any other necessary permits or approvals)prior to commencing work. 4'�a CITY OF SALEM PUBLIC PROPRERTY DEPARTMENT \l.�TrR 12C WAi)1rN('.:ONSiREET •SAL!%1. %fASiAC211 SL17iC19/,'. ref:978-743-9595 •FAX:978.74G9846 Construction Debris Disposal Affidavit (required for all demolition and renovation work) In accordance with the sixth edition of the State Building Code, 780 Ch1R section 111.5 Debris, and the provisions of viGL c 40, S 54; Building Permit # _ ._ __ is issued with the condition that the debris resulting from this work shall be disposed of in a properly licensed waste disposal facility as defined by v1GL c 111. S 150A. The debris will be transported by: t12✓+s C's�_ (name of hauler) The debris will be disposed of in (came of facility) l adilres. of fit illy) �i_L:IUId Ut i Y1llIC .ipjm Uat - --- ' CITY OF SM.EM PUBLIC PROPERTY DEPARTMENT KlfOl�cv oew-.v MAYM 130 WARUNGTON SMW=•S.upx MAUACHUSEM 0197o T FJ-973-74S-9S9S• FAX 979-740.99" HOMEOWNER LICENSE EXEMPTION Please Print Date 0 7 Job Location Home Owner Address Home Owner Telephone 9zA- 9 5i yY Present Mailing Address The current exemption of"Homeowners"was extended to include owner-occupied dwellings of two Units or less and to allow such homeowners to engage an individual for hire who.does not possess a license,provided that the owner acts as supervisor. DEFINITION OF HOMEOWNER Person(s) who owns a parcel of land on which he/she resides or intends to reside, on which there.is, or is intended to be, a one or two family dwelling, attached or detached structures accessory to such use and/or farm structures. A person who constructs more than one home in a two year period shall not be considered a homeowner. Such "homeowner"shall submit to the Building Official, on a form acceptable to the Building Official, that he/she be responsible for all such work performed under the Building Permit. The undersigned "homeowner"assumes responsibility for compliance with the State Building Code and other applicable by-laws and regulations. The undersigned "homeowner"certifies that he/she understands the City of Salem Building Department minimum inspection procedures and requirements and that he/she will comply with said procedures and requir en . HOMEOWNERS SIGNATURE APPROVAL OF BUILDING INSPECTOR See other side for state code 3 7 Driveway I i AS - BUILT FIRST FLOOR scale: 118 = V— 0" i i -,z +- gFl7RooM SIQ Enclosed Porch Closet Closet Closet Hall n 1 Stairs Roof i Closet Hall I Bedroom Library AS _ BUILT Bath SECOND FLOOR �� scale: 1/8 = 1'— C" Closet Exercise and TV Room — Bath Hall do I j Guest Bedroom Closet - - Guest Bedroom N O C� AS -- BUILT THIRD FLOOR scale: 1/8 = V— 0" F--S-AL PUBLIC PROPERTY DEPARTMENT KIMMALEY DRISCULL MAYOR 1Z0 WASHINGTON STREET ALEM,%tA15ACJ4L5El-IS 01970 1fi 978-745-9595 0 FAx.978-740-9846 APPLICATION FOR THE REPAIR, RENOVATION CONSTRUCTION DEMOLITION OR CHANGE OF USE OR OCCUPANCY FOR ANY EXISTING STRUCTURE OR BUILDING 1.0 SITE INFORMATION Location Name: Building: Property Address: 3l6 Fsap-x S7� Property is located in a; Conservation Area Y/N Historic District Y/N _ 2.0 OWNERSHIP INFORMATION 2.1 Owner of Land e Name: Address: Telephone: 3.0 COMPLETE THIS SECTION FOR 7MO NGS ONLY Addition g Renovation �/ ated Change in Use ODemolition g Approximate year of Area per floor (sq Renovated construction or renovation of existing building New Brief Description of Proposed Work: R/u��9�%2 cl>���o�s 7e � wcw✓JocL, ✓ Mail Permit to: — 9� What is the current use of the Building? L 0 f�kM / Material of Building? u 3Q i 12 if dwelling, how many units? Will the Building Conform to law? Asbestos? Architect's Name Address and Phone Mechanic's Name Address and Phone Construction Supervisors License# HIC Registration# Estimated Cost of Project$60 Coo Perk Fee Calculation Permit Fee$ `�u' Estimated Cost X$7/$1000 Residential Estimated Cost X$11/$1000 Commercial An Additional $5.00 is added as an K Administrative charge. Make sure that all fields are properly and legibly written to avoid defays'in processing. The undersigned does hereby apply for a Building Permit u d to the above stated specifications. Signed under penalty of perjury X Date 4a o � � o 4J `'• N a vIN bo o1 � > y Z ' G� 1351 � , The Commonwealth of MassachuthVECTIONALSERVI ES CITY OF Board of Building Regulations and Standards SALE NI u"WE" Massachusetts State Building Code, 78 ) Revisedslur 2011 q���cT d P Building Permit Application To Construct, Repair, Renovate Or emo tsh S One-or Two-Family Dwelling _ This Section For Official Use Only Building Permit Number: Date Ap ' d: I Building 011icial(Print Name). Sq nature . Dale SECTION l:SITE INFORtNIATION 1.1 Proper Ad Jress: Eer rs Nlap dt Parcel Numbers i s � s 1 1.1 a Is this an accepted street?yes_ no Parcel Number 1.3 Zoning Information: ly Dimensions: Zoning District Proposed Use 11) Frontage(11) 1.5 Building Setbacks(R) Front Yard Side Yards Rear Yard �. rl.6Water red Provided Required - Provided Required Provided Supply:(M.G.L c.40,§54) 1.7 Flood Zone Information: 1.8 Sewage Disposal System: Zone: Outside Flood Zone? Municipal O On site disposal system O Private❑ — Check if es❑SECTION2. PROPERTY OWNERSHIP". ert of Record! / C I)41'-L � 2�it �� .NN me(Print) City;State,ZIP / No.and Street Te'phane r Email Address SECTION 3:DESCRIPTION OF PROPOSED WORK°(check all that apply) New Construction[3Existing Building❑ Owner-Occupied 07 epairs(s) ❑ Aitemtion(s) ❑ Addition ❑ Demolition ❑ AcczssoryBldg.❑ NumberofUnits_ Other ❑ Specify: Brief Description of Proposed Work': / &' SECTION 4: ESTUNIATED CONSTRUCTION COSTS Item Estimated Costs: Official Use Only Labor and Materials) - 1. Building S 1. Building Permit Fee:S Indicate how fee is determined: ❑Standard City/Town Application Fee 2. Electrical S ❑Total Project Costs(Item 6)x multiplier s / 3. Plumbing $ 2�pther Fees: S t. Mechanical (FIVAC) S List: 5. Mechanical (Fire $ Total All Fees:S suppression) Check No._Chick Amount: Cash Amount: G.Total Project Cost: .i ❑Paid in Full ❑Outstanding Balance Due: (NW, t t— to (Z� VV"e, A3 �� SECTIONS: CONSTRUCTION SERVICES 5.1 Cut traction Supervisor License(CSL) _ 7 /\-1 ,,. 1. 1,. License Nu � Expiration Date Name ofCSL�Htolder— ,1:L•�L"'�� /� List CSL'rype(see below) —�_S ✓ `F�b� t Type - -- Description No. at4strect - s U Unrestricted(Buildings tip-to 35,000 cu. It R Restricted 1&2 Family Dwelling City/rows,State,ZIP �— M Masonry RC Rooting Covering WS Window and Sidinut SF SuliJ Fuel Burning Appliances �hS I Insulation 'isle hmta Email nJJress D Demolition 5.2 Registered Home Improv eent Contractor(HIC) ' S 3 (�{'Vz-�ff^`.P/1 /� \ /,I Lz c/_� HIC'PRegts ation umber Espimnon ate 1IICCum Name or,FIICReantName if� X/ No.andSireetn6���^. �� btll'�,"x/( Email address City/Town,State ZIP Telephone /�J SECTION 6:WORKERS'CORIPENSATION INSURANCE AFFIDAVIT(M.G.L:e.151.$2SC(6)). Workers Compensation Insurance affidavit must be completed and submitted with this application. Failure to provide I his afidavit will result in the denial of the Issuance of the building permit. Signed Affidavit Attached? Yes ......... No...........O SECTION Tat OWNER AUTHORIZATION,TO BE COMPLETED W HEN• OWNER'S AGENT OR CONTRACTORAPPLIES FOR BUILDING PER611T 1,as Owner of the subject property,hereby authorize t9 act on my behalf,in all matters relative to work authorized by this building permit application. Print Owner's Name(Electronic Signature) - Date SECTION 7b:OWNEW OR AUTHORIZED AGENT DECLARATION By entering my name below,I hereby attest under the pains and penalties of perjury that all of the information contained in this application is true and accurate to the best of my knowledge and understanding. Print Owner's or Authorized Agent's Name(Electronic Signature) Date NOTES: I. An Owner who obtains a building permit to do his/her own work,or an owner who hires an unregistered contractor (not registered in the Home Improvement Contractor(HIC) Program);will Ligof have access to the arbitration program or guaranty fund under M.G.L.c. I42A.Other important information on the HIC Program can be found at www mass eov'oca Information on the Construction Supervisor License can be found at www.mass._os:!Jns _ 2. When substantial work is planned,provide the information below: Total floor area(sq. R.) ' ,(including garage, finished basement/attics,decks or porch) Gross living area(sq. tl.) Habitable room count Number of fireplaces Number of bedrooms Number of bathrooms Number of half/baths Type of heating system Number of decks/porches 'rype of cooling system Enclosed' Open 3. "Total Project Square Footage"may be substituted far"Total Project Cost" .gONO T Salem Historical Commission 120 WASHINGTON STREET,SALEM, MASSACHUSETTS 01970 (978)619-5685 FAX(978)740-0404 CERTIFICATE OF NON-APPLICABILITY It is hereby certified that the Salem Historical Commission has determined that the proposed: ❑ Construction ❑ Moving ❑ Reconstruction ❑ Alteration ❑ Demolition Painting ❑ Signage ❑ Other Work as described below does not involve an exterior architectural feature or involves a feature covered by the exemptions or limitations set forth in the Historic District's Act (M.G.L. Ch. 40C) and the Salem Historic Districts Ordinance. District: McIntire Address of Property: 376 Essex Street Name of Record Owner: David Askey & Shumei Yin Description of Work Proposed: Repaint the house with existing colors. There will be no change to the design, material, color or outward appearance of the structure. Dated: _October 8. 2015 SALEM HISTORICAL COMMISSION By. The homeowner has the option not to commence the work (unless it relates to resolving an outstanding violation). All work commenced must be completed within one year from this date unless otherwise indicated. THIS IS NOT A BUILDING PERMIT. Please be sure to obtain the appropriate permits from the Inspector of Buildings (or any other necessary permits or approvals) prior to commencing work. J 35 C,K S S-1 The Commonwealth of Massachus [ry��j,,pECTIONAL SE ICES OF Board of Building Regulations and StaNards CITY n$ALEM M fvI Massachusetts 780 CNIR '�rM'r setts State Building Code, 1y� pp pp 2, A eJ,yur 2011 Building Permit Application To Construct, Repair, Renot teSC r emolish a One-or Two-Family Dwelling n This Section For Official.Use Only [I d Building Permit Number. Date ppliedt Building Official(Print N.une), Signature Date SECTION 1:SITE INFORtMAT10N' 1.1 Property Address: 1.2 Assessors Map dlr Parcel Numbers 1 2374( <Lst I.[a Is this an accepted street?yes_ no Map Number Parcel Number 1.3 Toning Information: 1.4 Property Dimensions: Zoning District Proposed Use Lot Area(sy It) Frontage(It) 7.5 Building Setbacks(R) Front Yard Side Yards Rear Yard Required Provided Required Provided Required Provided 1.6 Water Supply:(M.G.L c.40,§54) 1.7 Flood Zone Information: 1.8 Sewage Disposal System: Public❑ Private O Zone: _ Outside Flood Zone? Municipal❑ On site disposal system ❑ Check if esO SECTION2: PROPERTYOWNERSH& 2.1 Ownerl of Record: 5MVF TM H1fDY1_1dlN Nthme(Print) City,State,ZIP No.and Street Telephone Email Address SECTION 3: DESCRIPTION OF PROPOSED WORK'(check all that apply) New Construction❑ Existing Building O Owner-Occupied O 1 Repairs(s) KJ Alteration(s) O Addition ❑ Demolition O Accessory Bldg.❑ Number of Units_ Other O Specify: Brief Description of Proposed Work-: R& o,C aaQ RL-H`v'Q DF(_K 13,)& S )?, rW KUdC ,t— - 7 FseQ&_'. 6-66—G141 SECTION 4: ESTIMATED CONSTRUCTION COSTS Item Estimated Costs: Official Use Only Labor and Materials) I. Building S UO C��' I. Building Permit fee:$ Indicate how fee is determined: ❑Standard City/Town Application Fee 2. Electrical $ ❑Total Project Cosh(Item 6)x multiplier x 3. Plumbing S P Qther Fees: S d. Mechanical (HV;\C) S List: 5.Mechanical (Fire S Total All Fees:S Suppression) Check Na._Check Amount: Cash rinunmt: 6.Total Project Cost: S 5000 0 Paid in Full ❑Outstanding Balance Due: SECTION5: CONSTRUCI'IONSERVICES ? 5.1 Construction Supervisor License(CSL) c<;_c611 R �D — � - �- ^'" License Number Ex nratmn ate Name ofLC1SL Holder ` List CSL Type(see below) V �> I�-� Tye,. . Description . No. and Street U Unrestricted(Buildingsa to 35,000 cu. II. ©197t� Restricted 1&2 Ru.nily Dwelling Cityfrown,State,"LIP M Masonry RC I Roofing Covering WS Window and Siding SF Solid Fuel fuming Appliances S 36 a 21Y a Tl G I Insulation " cle hone Email address !U D Demolition 5.2 Registered Home Improvement Contractor(HIC) /1,K2 >S n IMF/mot C)) Uam — HIC Registration Number Er ratio Date HIC C'S �ontp;a N c or HIC Registrant Name /t �i11 r�J/z/�Fr�tiJ3;��'NtCvt51,K,�t No.and Street Email address City/Town, State ZIP Tele hone SECTION 6:WORKERS'COMPENSATION INSURANCE AFFIDAVIT(M.G.L.c.152.§ 25C(6)), Workers Compensation Insurance affidavit must be completed and submitted with this application. Failure to provide this affidavit will result in the denial of the Issuance of the building permit. Signed Affidavit Attached? Yes .......... No...........0 SECTION 7a:OWNER AUTHORIZATION. TO BE COMPLETED WHEN, OWNER'S AGENT OR CONTItACTORAPPLIES FOR BUILDING PERMIT` 1,as Owner of the subject property,hereby authorize t9 act on my behalf,in all matters relative to work authorized by this building permit application. Print Owner's Nmne(Electronic Signature) Date SECTION 7b:OWNEW OR AUTHORIZED AGENT DECLARATION fByentering my name below,I herebynttest under the pains and penalties of perjury that all of the information ained in this application is true and accurate to the best of my knowledge and understapding. �03 /1z r a Print Owner's or Authorized Agent's Name(Electronic Signature) Dote NOTES: I. An Owner who obtains a building permit to do his/her own work,or an owner who hires an unregistered contractor (not registered in the Home Improvement Contractor(HIC) Program),will out have access to the arbitration program or guaranty fund under M.G.L.c. I42A.Other important information on the HIC Program can be found at vww.mass. o� 4;01'il Information on the Construction Supervisor License can be found at w+vw.mas. u+'dns . [-tantial When subs work is planned,provide the information below: tal floor area(sq. ft.) a .(including garage,finished basementlattics,decks or porch) oss living area(sq. 11.) Habitable room count mber of fireplaces Number of bedrooms mber of bathrooms Number of half%baths pe of heating system Number of decks/porches 'rype orcooling system Enclosed Open 1. `'ffolal Project Square Foolage"miry be substituted fur"Told Project Cost"