6 Botts Court Statement of Grounds MEMO FOR CROWLEY RESIDENCE TO ZONING BOARD
AUGUST MEETING
6 BOTTS COURT, SALEM
To the Board of Appeals,
WHEN REVIEWING AN EXTENTION OR STRUCTURAL CHANGE TO A SINGLE OR
TWO FAMILY STRUCTURE ONE HAS TO DETERMINE THE EXTENT OF THE PROTECTIONS
AFFORDED TO THE PROPERTY OWNER UNDER CHAPTER 40A SECTION SIX AS SET OUT IN
THE FIRST SO CALLED "EXCEPT CLAUSE" CARVED OUT BY THE STATUTE IN DEALING WITH
PREEXISTING NONCONFORMING STUCTURES AND LOTS.
ONCE YOU HAVE DETERMINED THE PROPERTY, STRUCTURE AND USE IS
AFFORDED THE PROTECTION OF BEING PRE-EXISTING, HAVING BEEN BUILT IN KEEPING
WITH PRIOR REGULATIONS, IF ANY, AND USED AS A SINGLE OR TWO FAMILY RESIDENCE
YOU ARE ENTITLED TO THE APPLICATION OF THE SO CALLED "SECOND EXCEPT CLAUSE
OF 40A SECTION 6"AND THE LONG LINE OF CASES FROM FITZSIMMONDS TO GALE,
THROUGH THE BRANSFORD, BJORKLAND, DEADRICK AND BELLALTA CASES.
THE STANDARD IS AS SET OUT IN FITZSIMONDS: "WHERE ALTERATION, RECONSTRUTION,
EXTENSION OR STRUCTURAL CHANGE TO A SINGLE OR TWO FAMILY RESIDENTIAL
STRUCTURE DOES NOT INCREASE THE NONCONFORMING NATURE OFTHE SAID
STRUCTURE, PRE-EXISTING NONCONFORMING STRUCTURES OR USES MAY BE
EXTENDED OR ALTERED, PROVIDED, THAT NO SUCH EXTENTION OR ALTERATION
SHALL BE PERMITTED UNLESS THERE IS A FINDING BY THE PERMIT GRANTING
AUTHORITY OR BY THE SPECIAL PERMIT GRANTING AUTHORITY DESIGNATED BY
ORDINANCE OR BY-LAW THAT SUCH CHANGE, EXTENTION OR ALTERATION SHALL
NOT BE SUBSTANTIALLY MORE DETRIMENTAL THAN THE EXISTING NONCONFORMING
USE TO THE NEIGHBORHOOD."
THE GALE CASE THROUGH BRANSFORD AND BJORKLUND ESTABLISHED THE TWO-PART
TEST OF THE SECOND EXCEPT CLAUSE. THE COURT RULED: "AS CONCERNS SINGLE AND
TWO-FAMILY RESIDENTIAL STRUCTURES THE PERMIT GRANTING AUTHORITY MUST
ID ENT]FYTHEPARTICULAR RESPECT OR RESPECTS IN WHICH THE EXISTING STRUCTURE
DOES NONCON FORM TO THE PRESENT BY-LAW AND THEN DETERMINE WHETHER THE
PROPOSED RESULT IN ADDITIONAL ONES.....IF THE ANSWER TO THAT QUESTION IS IN
THE AFFIRMATIVE A FINDING OF NO SUBSTANTIAL DETRIMENT UNDER THE SECOND
SENTENCE IS REQUIRED."
HOWEVER, IF THE ANSWER IS IN THE NEGATIVE THAN THE PERMIT GRANTING
AUTHORITY CAN ISSUE A PERMIT ON THE FINDING OF THE"ALTERATION OR EXTENSION
SHALL NOT BE SUBSTAINTIALLY MORE DETRIMENTAL THAN THE EXISTING
NONCONFORMING USE TO THE NEIGHBORHOOD."
IN 2019 THE BELLALTA CASE CONFIRMED THE RIGHTS OF THOSE WHO ALTERED OR
EXTENDED A NONCONFORMING STRUCTURE USING THE SO CALLED "SECOND
EXCEPT CLAUSE; " EVEN WHEN THERE IS NO SPECIFIC PROVISION IN THE APPLICABLE
BY-LAW THAT WOULD PERMIT THE ALTERATION OF THE EXISTING NONCONFORMITY
THE SAME TWO-PART TEST FOR THE PERMIT GRANTING AUTHORITY IS APPLIED."
WHEN YOU COMBINE THE CASE LAW WITH SECTION 3.3.5. OF THE SALEM ZONING
ORDINANCE WHICH GIVES THE BUILDING COMMISIONER THE RIGHT TO MAKE THAT
DETERMINATION IF HE OR SHE FINDS IT APPROPRIATE AND IF NOT THE PETITIONER MAY
ASKS THE ZONING BOARD TO DO SO BY RELYING ON THE BELLALTA DECISION AND THE
OTHER SITED CAE LAW IN COMBINATION WITH SECTION 3.3.5. AS YOU ARE NOT
LIMMITED TO THE THREE FACTORS LISTED IN MAKING YOUR DETERMINATION.
WE BELIEVE THE ZONING BOARD MAY FIND THE ALTERATIONS PROPOSED WILL NOT
INTENSIFY THE EXISTING NONCONFORMITIES OR RESULT IN NEW ONES, HOWEVER, IF
THE BOARD CANNOT JUSTIFY FINDING THAT THE "ALTERATIONS WOULD NOT INTENSIFY
THE EXIXTING NONCON FORM ITIES OR RESULT IN ADDITIONAL ONES"WE ASK THE
BOARD TO ADDRESS AND ANSWER THE SECEND QUESTION THAT THE ALTERATIONS ARE
"NOT SUBSTANTIALLY MORE DETRIMENTAL TO THEN I EGHBORHOOD".
THE PETITIONER HAS REACHED OUT TO HER NIEGHBORS AND HAS RECEIVED THEIR
SUPPORT AS EVIDENCED BY A LETTER FROM THE ABUTTER THAT WOULD BE MOST
AFFECTED WE HAVE FILED AND THAT WE HAVE APPEARED BEFORE THE HISTORIC
COMMISSION AND HAVE THEIR APPROVAL FORTH IS PROJECT.
WE ASK THE BOARD GRANT THE REQUESTED RELIEF BY FINDING THAT THE PROPOSED
ALTERATIONS OR EXTENTIONS WILL NOT BE "SUBSTANTIALLY MORE DETRIMENTAL TO
THE NEIGHBORHOOD"AND IF THE BOARD DEEMS NECESSARY GRANT ASPECIAL
PERMIT.
RESPE FULLY SUBMITTED,
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CHRIS D S, ATTORNEY FOR
BETH CROWLEY