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0107 FEDERAL STREET - BUILDING JACKET oili . 107 FEDERAL STREET John H. Carr, Jr., Esq. 9 North Street Salem, MA 01970 �p Phone: 978-92-5-404Q- Z� 1 Fax: 978-825-0068 *08 22 Fj 21 40 F11 ,jAugust 22, 2016 6lTY r:�l.mg S,XL M. MA-55: By Hand Salem City Clerk Salem City Hall 93 Washington Street Salem, MA 01970 Re: Jane Arlander, et al. v. Richard Jagolta, et al. Essex Superior Court Docket N. 16-1274D Dear Madam Clerk: Enclosed please find: 1. Notice To Salem City Clerk Of Plaintiffs'Appeal To Essex Superior Court From August 3, 2016 Decision of the Salem Zoning Board of Appeals Granting a Special Permit To Richard Jagolta Concerning 107 Federal Street, Salem, Massachusetts (Salem Assessor's Map 26, Lot 531; 2. Attached copy of Plaintiffs' Complaint Pursuant To M.G.L. Chapter 40A, Section 17 Appealing the August 3, 2016 Decision of the Salem Zoning Board of Appeals Granting a Special Permit To Richard Jagolta Concerning 107 Federal Street, Salem, Massachusetts (Salem Assessor's Map 26, Lot 531) bearing the date-stamp and docket number of the Essex Superior Court. Would you or someone from your office kindly date-stamp and file same, and also acknowledge receipt of the foregoing by date-stamping the enclosed copies of this letter and said Notice and return same with our messenger. Thank you in advance for your attention to the fore oing. cry truly o r John . Carr r. Enc. Cc Salem City Solicitor Elizabeth Renn —By Hand Plaintiffs - By Hand COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO: 16-1274D JANE ARLANDER, DARROW LEBOVICI, DAVID ) TRAINOR, MARIBETH KEEFE, JAMES ) DALY, CAROL CARR, JOSIAH FISKE, STEPHEN ) WHITTIER, ANN WHITTIER, CHARLES VON BRUNS, ) and ELAINE VON BRUNS, ) PLAINTIFFS ) ,a � o V. ) t� m c RICHARD JAGOLTA and ) ? N REBECCA CURRAN, PETER COPELAS, MIKE "? "D DUFFY, JIMMY TSITSINOS, TOM WATKINS, JIM ) (J HACKER, and PAUL VICCICA, BEING THE ) 3 N REGULAR and ALTERNATE MEMBERS OF THE ) ZONING BOARD OF APPEALS OF THE CITY OF ) ch o SALEM, MASSACHUSETTS, ) DEFENDANTS ) NOTICE TO SALEM CITY CLERK OF PLAINTIFFS' APPEAL TO ESSEX SUPERIOR COURT FROM AUGUST 3,2016 DECISION OF THE SALEM ZONING BOARD OF APPEALS GRANTING A SPECIAL PERMIT TO RICHARD JAGOLTA CONCERNING 107 FEDERAL STREET, SALEM, MASSACHUSETTS (SALEM ASSESSOR'S MAP 26, LOT 531) 1, John H. Carr, Jr., attorney for the Plaintiffs in the above-entitled action, hereby give notice to the City Clerk of the City of Salem, Massachusetts and to the Salem Zoning Board of Appeals that said Plaintiffs have filed a civil Complaint with the Essex Superior Court appealing the August 3,2016 Decision of the Salem Zoning Board of Appeals granting a Special Permit to Richard Jagolta concerning 107 Federal Street, Salem, Massachusetts (Salem Assessor's Map 26, Lot 531), which property is located in an R-2 (two family residential) Zoning District, Said August 3, 2016 Salem Zoning Board of Appeals Decision was filed with the office of the Salem City Clerk on August 3, 2016. A copy of said Complaint filed as Essex Superior Court Civil Action No. 16-1274D on August 22, 2016, bearing the date-stamp of the Essex Superior Court, is attached hereto. Respectfully submitted, Jane Arlander,et al., By their attorney, August 22, 2016 John H. C , Jr., s 9 No eet Sale , A01970 (97 ) 07-3264 # 075280 - 2 - COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO: lb JANE ARLANDER, DARROW LEBOVICI, DAVID ) TRAINOR, MARIBETH KEEFE, JAMES ) DALY, CAROL CARR, JOSIAH FISKE, STEPHEN ) WHITTIER,ANN WHITTIER, CHARLES VON BRUNS, ) o and ELAINE VON BRUNS ) �, PLAINTIFFS ) s a V. ) v; N s. RICHARD JAGOLTA and ) REBECCA CURRAN,PETER COPELAS, MIKE DUFFY, JIMMY TSITSINOS, TOM WATKINS, JIM ) z m HACKER, and PAUL VICCICA,BEING THE ) REGULAR and ALTERNATE MEMBERS OF THE ZONING BOARD OF APPEALS OF THE CITY OF ) N "AM SALEM, MASSACHUSETTS, ) jO DEFENDANTS ) c c A COMPLAINT PURSUANT TO M.G.L. CHAPTER 40A, SECTION 17 APPEALING THE AUGUST 3,2016 DECISION OF THE SALEM ZONING BOARD OF APPEALS GRANTING A SPECIAL PERMIT TO RICHARD JAGOLTA CONCERNING 107 FEDERAL STREET, SALEM, , MASSACHUSETTS(SALEM ASSESSOR'S MAP 26, LOT 5311 This is an appeal from a Decision of the City of Salem, Massachusetts Board of Appeals (hereinafter"ZBA" or"Salem ZBA"), dated August 3, 2016, and filed with the Salem City Clerk on August 3, 2016 granting a Special Permit to Richard Jagolta to convert the first floor of 107 Federal Street, Salem, Massachusetts into a residential unit, which property is located in an R-2 Zoning District, on the grounds that said ZBA Decision was arbitrary, capricious, unreasonable, violated due process, exceeded the Board's authority, was based on legally and factually untenable grounds, and was wrong as a matter of law. A certified copy of said August 3, 2016 Decision is attached hereto as Exhibit A. PARTIES Plaintiffs 1. Plaintiff,Jane Arlander, is a trustee and beneficiary of the Jean C. Arlander Real Estate Trust which owns 93 Federal Street, Salem, Massachusetts, which property is located within 300 feet of 107 Federal Street, and thus, within the 300-foot notice requirement of the Salem Zoning Ordinance. Ms. Arlander also resides at 93 Federal Street. 2. Plaintiff, Darrow Lebovici, is a trustee and beneficiary of the Margaret K. S. Twohey Revocable Trust of 2013, which owns 122 Federal Street, Salem, Massachusetts. 122 Federal Street, where Mr. Lebovici resides, is located within 300 feet of 107 Federal Street, and thus, within the 300-foot notice requirement of the Salem Zoning Ordinance. In addition, Mr. Lebovici is a trustee and beneficiary of the Darrow A. Lebovici Revocable Trust of 2013, which owns 120 Federal Street, Salem, Massachusetts, which property is likewise located within 300 feet of 107 Federal Street, and thus, within the 300-foot notice requirement of the Salem Zoning Ordinance. 3. Plaintiff,,James Daly, owns and resides at Unit 2, 110 Federal Street, Salem, Massachusetts, which is located directly across 107 Federal Street, and thus, within the 300-foot notice requirement of the Salem Zoning Ordinance. 4. Plaintiffs, David Trainor and Maribeth Keefe, are husband and wife who own and reside at Unit B, 2 Andover Street, Salem, Massachusetts, which is located directly across 107 Federal Street, and thus, within the 300-foot notice requirement of the Salem Zoning Ordinance. 5. Plaintiff, Carol Carr, owns and resides at 7 River Street, Salem, Massachusetts, which is located within 300 feet of 107 Federal Street, and thus, within the 300-foot notice requirement of the Salem Zoning Ordinance. 6. Plaintiff, Josiah Fiske, owns and resides at 358 Essex Street, Street, Salem, Massachusetts, which is located within 300 feet of 107 Federal Street, and thus, within the 300-foot notice requirement of the Salem Zoning Ordinance. 7. Plaintiffs, Stephen Whittier and Ann Wittier, are husband and wife who own and reside at 10 River Street, Salem, Massachusetts, which is located within 300 feet of 107 Federal Street, and thus, within the 300-foot notice requirement of the Salem Zoning Ordinance. 8. Plaintiffs, Charles von Bruns and Elaine von Bruns, are husband and wife who own and reside at 3 River Street, Salem, Massachusetts, which is located within 300 feet of 107 Federal Street, and thus, within the 300-foot notice requirement of the Salem Zoning Ordinance. Defendants 9. Defendant, Richard Jagolta, LLC (hereinafter" Mr. Jagolta"), who owns and resides at 41 Chestnut Street, Salem, Massachusetts 01970, is the owner of Unit No 1 in The 107 - 2 - Federal Street Condominium, 107 Federal Street, Salem, Massachusetts 01970, and is the petitioner/beneficiary of the August 3, 2016 ZBA Decision herewith being appealed. 10. Defendant, Rebecca Curran, also known as Rebecca Curran, who resides at 14 Clifton Avenue, Salem, Massachusetts 01970, is a regular Member and the Chair of the Salem ZBA who voted to grant said Special Permit at the July 20, 2016 hearing of the Salem ZBA. 11. Defendant, Peter Copelas, who resides at 40 Warren Street, Salem, Massachusetts 01970, is a regular Member of the Salem ZBA who voted to grant said Special Permit at the July 20, 2016 hearing of the Salem ZBA. 12. Defendant, Jimmy Tsitsinos, also known as James Tsitsinos, who resides at 55 Lawrence Street Unit#2, Salem, Massachusetts 01970, is a regular Member of the Salem ZBA who voted to grant said Special Permit at the July 20, 2016 hearing of the Salem ZBA. 13. Defendant, Paul Viccica, who resides at 35 Broad Street, Salem, Massachusetts 01970, is an Alternate Member of the Salem ZBA who voted to grant said Special Permit at the July 20, 2016 hearing of the Salem ZBA. 14. Defendant, Mike Duffy, also known as Michael Duffy, who resides at 1 Warren Court, Salem, Massachusetts 01970, is a regular Member of the Salem ZBA who was not present at the July 20, 2016 hearing on Mr. Jagolta's petition, and thus, did not participate in the July 20, 2016 vote of the Salem ZBA which resulted in the August 3, 2016 Decision being appealed. 15. Defendant, Jim Hacker, also known as James Hacker, who resides at 4 Mayflower Lane, Salem, Massachusetts 01970, is an Alternate Member of the Salem ZBA who was not present at the July 20, 2016 hearing on Mr. Jagolta's petition, and thus, did not participate in the July 20, 2016 vote of the Salem ZBA which resulted in the August 3, 2016 Decision being appealed. 16. Defendant, Tom Watkins, also known as Thomas Watkins, who resides at 24 Surrey Road, Salem, Massachusetts 01970, is a regular Member of the Salem ZBA who was not present at the July 20, 2016 hearing on Mr. Jagolta's petition, and thus, did not participate in the July 20, 2016 vote of the Salem ZBA which resulted in the August 3, 2016 Decision being appealed. 17. All of the Plaintiffs have standing to bring this action, as all are substantially aggrieved by the August 3, 2016 Decision of the Salem ZBA granting said Special Permit. JURISDICTION 18. This Court has jurisdiction over this matter pursuant to Section 17 of Chapter 40A of the Massachusetts General Laws. - 3 - 19. This case is timely, as it has been filed within twenty (20) days from August 3, 2016, which is when the August 3, 2016 Decision of the Salem ZBA was filed with the Salem, Massachusetts City Clerk. PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS 20. 107 Federal Street, Salem,Massachusetts (hereinafter"107 Federal Street") is a three- story Victorian structure with a Mansard roof which is located at the southwest corner of Federal and Beckford Streets in Salem, Massachusetts in an R-2 (two family) Residential Zoning District. 21. Said property is also located in both the National Register of Historic Places and in the so-called McIntire Historic District adopted by the Salem City Council pursuant to Chapter 40C of the Massachusetts General Laws. 22. Said property purportedly consists of three condominium units, one on each of the building's three above-ground floors. 23. The second and third floors are separate residential condominium units. 24. The use of the first floor(and possibly basement) is what is under dispute in this action. 25. The northerly and easterly sides of the structure at 107 Federal Street are located directly on the Federal and Beckford Street sidewalks, and said (sole) building on the lot occupies almost all of the lot. 26. According to Section 4.1.1 of the Salem Zoning Ordinance and the R-2 zoning for the R- 2 Zoning District in which 107 Federal is located: a. The "Minimum lot area" is 15,000 square feet, as compared with 2,379 square feet for the existing lot, or only 15.86%of said minimum; b. The "Minimum lot frontage" is 100 feet, as compared with 65 feet for the existing frontage on Federal Street; c. The"Minimum lot width" is 100 feet, as compared with the approximate lot width of 55 feet at its widest; d. The "Minimum depth of front yard," also known as "front yard setback," is 15 feet, as compared with a zero (0) setback in front of the building at 107 Federal Street; e. The"Minimum width of side yards," also known as "side yard setback" is 10 feet, as compared with zero (0) side yard setbacks along the easterly (i.e. Beckford Street side) and westerly side lot lines of 107 Federal Street; - 4 - f. The"maximum lot coverage for all buildings" is 35%, as compared with the lot coverage of the existing building, which is well in excess of the approximate 75% building lot coverage at 107 Federal Street; g. The "maximum height of buildings" is 2.5 stories, as compared with the existing grandfathered 3-story structure at 107 Federal Street. 27. The Salem Zoning Ordinance limits density and use to two residential units in an R-2 Zoning District, as compared with the three residential uses provided in the August 3, 2016 Decision of the Salem ZBA. 28. Section 5.1 of the Salem Zoning Ordinance (entitled "Off-Street Parking") governs off- street parking in all areas of the City, including in an R-2 Zoning District 29. Section 5.1.5 (entitled"Design") of said Ordinance provides the following in relevant part: "The design of all-off-street parking facilities shall conform to the following: 1. Parking facilities shall be occupied only by passenger cars and commercial vehicles not exceeding seven and one-half(7.5) feet in width and eighteen (18) feet in length. 2. The minimum dimensions of stalls shall be as follows: a. Stall width shall be at least nine (9) feet. b. Stall depth shall be at least nineteen (19) feet for all angle parking... Such dimensions may include no more than two (2) feet of any landscaped setback area adjacent to the front or rear of a stal I and used for bumper overhang. . . 5. Parking facilities shall be designed so that each motor vehicle may proceed to and from the parking space provided for it without requiring the moving of any other motor vehicle." Emphasis added. 30. Section 5.1.6 (entitled "Setbacks") of the Salem Zoning Ordinance provides the following in relevant part: "Setbacks for parking areas shall be provided as follows: 1. In all districts parking stalls in parking lots shall be set back from the street lot line to whatever extent may be necessary in the specific situation, as determined by the Building Commissioner, to avoid the probability of cars backing or otherwise maneuvering on the sidewalk upon entering or leaving the stalls. In no case shall parking lots be designed to require or encourage cars to back into a public or private way in order to leave the lot. Emphasis added. - 5 - 2. The surfaced area of a parking lot and all entrance and exit drives shall be set back a minimum of two (2) feet from all lot lines, except where an access driveway crosses the street lot line." Emphasis added. 31. Section 5.1.8 (entitled "Table of Required Parking Spaces") of the Salem Zoning Ordinance provides for the following parking in an R-2 Zoning District: "One and one- half(11/2) spaces per dwelling unit,with a minimum of two (2) spaces, plus one(1) space for each home occupation. Emphasis added. 32. Notwithstanding Mr. Jagolta's claims that there are 8 parking spaces at 107 Federal Street, there are only three (3)parking spaces, i.e. one for each of the purported three units, and these do not conform to the foregoing dimensional requirements for such spaces. 33. In prior years there was a free-standing, outdoor telephone booth at the northwestern (front) comer of the existing structure, which is a further rebuttal of Mr. Jagolta's historical claims of the number of legitimate parking spaces at 107 Federal Street. 34. The existing lot, structure, density (both in terms of structure and use),and parking at 107 Federal Street property already violates in several material respects the relevant maximums or minimums of an R-2 Zoning District, even before taking into account the Special Permit approved by the Salem ZBA in its August 3, 2016 Decision. 35. According to the August 3, 2016 ZBA Decision, 107 Federal Street is believed to have been constructed "around 1880," long before the advent of zoning in Salem. 36. It was built by a grocer named John Chandler, who in 1897 also built the colonial revival, single-family dwelling as his own residence at 106 Federal Street(located at the northeast corner of Federal and Beckford Streets, directly opposite 107 Federal at the southwest corner of said intersection), and at about the same time, the Queen Anne dwelling immediately abutting 107 Federal Street at 21 Beckford Street to the south. 37. Mr. Chandler also owned the 18'h century dwelling at 7 River Street constructed by his grandfather, a housewright also named John Chandler, who emigrated from Ireland and was an officer on the side of the Colonies during the American revolution. 38. The first floor of 107 Federal Street was operated as a local grocery store up until the time of Mr. Chandler's death on January 29, 1903. 39. Thereafter the first floor of 107 Federal Street continued to be operated as a local grocery store, with residential uses on the second and third floors. 40. 107 Federal Street was operated as a local variety store until 1995, at which time the commercial use was changed from a local variety store to a plant store known as "The Plant Branch." - 6 - 41. By Special Permit Decision dated March 15, 1995, filed with the Salem City Clerk on April 3, 1995 (hereinafter"March 15, 1995 ZBA Decision'), the conversion of the commercial use of the first floor of 107 Federal Street from a local variety store to a plant store was formally approved by the Salem ZBA pursuant to Section 3.2.2 of the Salem Zoning Ordinance. 42. Article 3.3.2 of the Salem Zoning Ordinance, entitled"Nonconforming Uses," provides the following in relevant part: The Board of Appeals may award a special permit to change a nonconforming use in accordance with this section only if it determines that such change or extension shall not be substantially more detrimental than the existing nonconforming use to the neighborhood. The following types of changes to non conforming uses may be considered by the Board of Appeals...2. Change from one nonconforming use to another, less detrimental, nonconforming use. Emphasis added. 43. At some point in 2006 .107 Federal Street was purchased by Keith A. McCleam and Christine McClearn(hereinafter"the McClearns"or"Christine McClearn"). 44. On information and belief it was the McCleams who condominiumized 107 Federal Street. 45. At some point in 2006 Christine McClearn applied for a change in use of the first floor of 107 Federal Street to an art gallery/graphic design studio. 46. As with the earlier change of commercial use from a local variety store to the Plant Branch, said petition was likewise based on Section 3.3.2 of the Salem Zoning Ordinance. 47. By Decision dated August 17, 2006 (hereinafter"August 17, 2006 ZBA Decision'), which was entered in the office of the Salem City Clerk on September 11, 2006, Christine McCleam was granted a Special Permit by the Salem ZBA "to allow for a graphic design business and art gallery"on the first floor of 107 Federal Street in the space formerly occupied by The Plant Branch. 48. Among the explicit findings in the August 17, 2006 ZBA Decision granting a Special Permit to Christine McCleam are the following: a. The petitioner will only utilize the first floor of the property for the graphic design business. - 7 - b. The hours of operation of the graphic design business will be Monday-Friday during regular business hours, and the art gallery will operate during the same business hours with the only exception being an occasional Saturday or Sunday appointment as needed and an occasional evening gallery reception for artists. c. Parking for the use will be accommodated by the existing on-street parking, or the single off-street parking space at the site. d. The graphic design business shall function on an appointment only basis and shall not function as retail space. e. The art gallery shall be limited to showing paintings and photographs displayed on the walls and shall not include the display or sale of crafts, jewelry or other art-craft objects. f. There shall be only three (3)employees on site (including the business owners) at any one time for the operation of the graphic design business. Emphasis added. 49. In the (nearly) eight years between August of 2006 and May of 2014 the first floor of 107 Federal Street was rarely, if ever, used as an art gallery or graphic design studio, and said space was largely devoid of any activity whatsoever during said period. 50. By Master Deed dated November 2, 2006, and recorded at Book 26255, Page 574 at the Essex South Registry of Deeds, "The 107 Federal Street Condominium" (hereinafter "The 107 Federal Street Condominium") was created. 51. Unit I of The 107 Federal Street Condominium comprises the entire first floor of 107 Federal Street. It is presently unknown whether said Unit I also includes the basement of 107 Federal Street in whole or in part. 52. In the Spring of 2014 the McCleams leased the first floor space at 107 Federal Street to one Rodney Sinclair. 53. On or about April 30, 2014 said Rodney Sinclair filed a handwritten Petition for Special Permit to Section 3.2.2 of the Salem Zoning Ordinance to "open a real estate consulting office known as "Sinclair Solutions." 54. By Decision dated June 10, 2014 the Salem ZBA approved Rodney Sinclair's April 20, 2014 Petition For Special Permit, subject to multiple limitation conditions,including with respect to number of employees and days and hours of operation(hereinafter"June 10, 2014 ZBA Decision"). - 8 - 55. Said 2014 Sinclair Special Decision was timely appealed by a number of neighbors, which Complaint was filed with this Court on June 27, 2014 as Essex Superior Court Civil Action No. 2014-1050B. 56. Count I, paragraphs 40-44 inclusive of said Complaint alleged that"The pre-existing nonconforming uses have been discontinued for more than two years and thus are extinguished." 57. An Agreement For Judgment dated February 22, 2016 was ultimately reached, which was filed with this Court on March 2, 2016 (the intervening period being used to obtain the formal ratification of the Salem ZBA). 58. Paragraph 1 of said February 22, 2016 Agreement For Judgment provides the following: The June 10, 2014 Decision of the Salem ZBA is hereby annulled, nullified, and voided in its entirety, and that Judgment with prejudice, so annulling, nullifying, and voiding said June 10, 2014 Salem ZBA Decision shall enter forthwith in favor of the Plaintiffs. Emphasis added. 59. Mr. Jagolta acquired title to the first floor of The 107 Federal Street Condominium by Quitclaim Deed dated March 24, 2016 in full consideration of$107,000.00. 60. Said$107,000.00 consideration is $32,183.00 less than the assessed value of Unit 1 of $139,183.00. This compares with the third floor (walk-up) unit that went on the market on August 10, 2016 at an advertised list price of$199,900.00,as compared with an assessed value $190,900.00. 61. Mr. Jagolta is the head of the Salem Board of Assessors, and presumably is knowledgeable enough in real estate matters to know that by purchasing 107 Federal Street before obtaining zoning relief, he assumed the risk that such zoning relief would be denied, or if obtained, overturned. 62. On information and belief, Mr. Jagolta, is also a graduate of Princeton and the Wharton School of Finance of the University of Pennsylvania, and primarily eams his living from real estate investments. 63. However, Mr. Jagolta is also believed to derive income from the rental of his "Historic Brick Federal Period Mansion On Fabled Chestnut Street" where he advertised as late as April 9, 2016 on a website known as "HomeAway.com. Inc [US] his "6,000 square foot 6 bedroom, 3.5 bath home,"built in 1810,"at 41 Chestnut Street, Salem, Massachusetts at an "avg/night"rental of$903.00 and a"Minimum Stay 3-4 nights." 64. Said internet advertisment also recites that said mansion "Sleeps 12" and invites the public to also "inquire about the guest suite in the property's carriage house, which sleeps two to four people." - 9 - 65. Mr. Jagolta's original Petition For Special Permit was date-stamped May 20, 2016 and was based on Section 3.2.2 of the Salem Zoning Ordinance. 66. An initial hearing on Mr. Jagolta's Petition was held by the Salem ZBA on Wednesday, June 15, 2016, at which there was testimony and submissions from members of the public who were either supportive or opposed to said Petition. 67. Because of the legal and factual issues raised by opponents at the June 15, 2016 ZBA hearing"the Board sought an opinion of the City Solicitor to determine whether a Special Permit per Sec 3.3.2 Nonconforming Uses was the correct form of relief required for the request. Further the Board also requested an opinion on whether a previously issued Special Permit [presumably the June 2014 Sinclair Special Permit Decision that was the subject of the February 22, 2016 Agreement For Judgment] was valid." 68. The Salem City Solicitor ultimately referred the opinion to attorney Jill Elstrom Mann of Mann & Mann, PC. 69. Plaintiffs' Counsel was later informed by the Salem City Solicitor that attorney Mann issued an initial opinion, the results of which are unknown, based on"the wrong facts." 70. On July 15, 2016 attorney Mann issued a revised legal opinion concluding that the 2006 Special Permit did not lapse as a result of the discontinuation of the permitted art gallery/graphic Design Studio for a period in excess of two years and that the conditions set forth in the 2006 McClearn Special Permit Decision were and are still valid, but that Mr. Jagolta "should have applied for a Special Permit under Section 9.4 of the [Zoning] Ordinance in accordance with Condition#7 of the 2006 Special Permit." 71. As above recited, all of the above four Special Permit Decisions relative to the first floor of 107 Federal Street rendered by the Salem ZBA over a 21-year period, including Mr. Jagolta's original May 20, 2016 Petition, were pursuant to Section 3.2.2 of the Salem Zoning Ordinance. 72. Attorney Mann's opinion did not address the February 22, 2016 Agreement For Judgment, or the extent to which said Agreement constituted res judicata as a matter of law. 73. By letter addressed to a Ms. Schaeffer received by the Salem Department of Planning & Community Development on July 18, 2016 (according to its date-stamp), Mr. Jagolta wrote "Kindly modify my application for relief pursuant to request a special permit under Section 9.4 of the Ordinance in accordance with Condition#7 of the 2006 Decision and not under Section 3.33 [sic] of the Ordinance as previously requested." 74. There was no new advertising or other public notice. 75. At the regularly scheduled meeting of the Salem ZBA on Wednesday, July 20, 2016, only two days after Mr. Jagolta's July 18, 2016 letter, and at the height of the summer vacation - ]0 - season, the Salem ZBA approved Mr. Jagolta's revised Petition For Special Permit by a bare minimum vote of 4-0. 76. The resulting August 3, 2016 Decision of the Salem ZBA incorporating said vote was filed in the office of the Salem City Clerk also on August 3, 2016. 77. As to each of the following Counts, the Plaintiff's reaffirm, re-allege, and incorporate all of the prior allegations contained in paragraphs 1-76 inclusive above. ARGUMENT COUNTI THE SALEM ZONING BOARD'S AUGUST 3,2016 DECISION VIOLATES THE EXPLICIT PURPOSES OF THE SALEM ZONING ORDINANCE AND CHAPTER 40A 78. Section 1.1 of the Salem Zoning Ordinance, entitled"Purpose,"provides the following: For the purpose of promoting the health, safety, convenience, morals or welfare of the inhabitants of Salem, the zoning regulations and restrictions of this ordinance, ordained in accord with the provisions of Chapter 40A of the General Laws and, in the case of signs, ordained in addition in accord with the provisions of Section 29 of Chapter 93 of the General Laws, are designed among other purposes to lessen congestion in the streets; to preserve health; to secure safety from fire, panic and other dangers; to provide adequate light and air; to prevent overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements; to conserve the value of land and buildings; to encourage the most appropriate use of land throughout the City; and to preserve and increase its amenities, to preserve and protect the water supply, open space and conservation of natural resources, to prevent the pollution of the environment and community blight, to ensure housing for all income levels and compliance with the master plan of the City of Salem; all as authorized by, but not limited to, the provisions of the Zoning Act, G.L. c. 40A, as amended, Section 2A of 1975 Mass. Acts 808, and by Article 89 of the Amendments to the Constitution of the Commonwealth of Massachusetts. 79. The Planning Board's August 2, 2016 Decision does not lessen congestion in the street; does not prevent overcrowding of land; does not avoid undue concentration of population; does not facilitate adequate provision of transportation; does not conserve I/. the value of land and buildings; and does not encourage the most appropriate use of land, and does not preserve and protect open space. 80. The Special Permit granted to Mr. Jagolta pursuant to the August 3, 2016 Decision of the Salem ZBA are contrary to the above explicit Purposes of the Salem Zoning Ordinance. 81. For the foregoing reasons alone,the ZBA exceeded its authority in granting said Special Permit and said August 3, 2016 ZBA Decision must be annulled in its entirety. COUNT II THE AUGUST 3, 2016 SPECIAL PERMIT DECISION OF THE SALEM ZBA REPRESENTS A SUBSTANTIAL INCREASE IN ADVERSE NON- CONFORMING USES TO THE NEIGHBORHOOD 82. Finding no. 2 of the August 3, 2016 Special Decision of the Salem ZBA recites that "There will be less impact on the neighborhood regarding traffic flow and safety as the proposal will convert the first floor unit from a commercial space to a residential unit." 83. The Board does not explain its self-serving conclusion,namely how a conversion from a commercial unit to a residential unit in and of itself automatically or necessarily amounts to "less impact' on the surrounding neighborhood. 84. In point of fact, the new residential use on the first floor, given that it will exist 24 hours a day, 7 days a week, and 52 weeks a year, including weekends and holidays, is clearly more intense than the extensive limitation conditions in the March 15, 2016 ZBA Special Permit Decisions concerning the Plant Branch, in the August 17, 2006 Special Permit Decision concerning Christine McClearn, and in the June 10, 2014 Special Permit Decision concerning Rodney Sinclair, all of which placed substantial restrictions on the use of the first floor at 107 Federal Street, including hours and days of operation and the number of employee/occupants. 85. Nor does the Board explain its similarly general, self-serving, conclusionary finding of purported fact, written in bold type, that"The Board finds that any adverse effects of the proposed use will not outweigh its beneficial impacts to the City or the neighborhood as a residential dwelling unit and the use is consistent with the existing building and neighborhood,which is another classic instance of circular reasoning. 86. Both statements do not amount to legitimate findings of fact, but(again)are merely self- serving conclusions, which also happen to be wrong. 87. For the foregoing reasons alone,the ZBA exceeded its authority in granting said Special Permit and said August 3, 2016 ZBA Decision must be annulled in its entirety. - 12 - COUNT III THE PRIOR GRANDFATHERED NON-CONFORMING FIRST FLOOR COMMERCIAL USE AT 107 FEDERAL STREET HAS BEEN PERMANENTLY EXTINGUISHED 88. Paragraph 1 of the February 22, 2016 Agreement For Judgment resolving the appeal of the June 10, 2014 Special Permit Decision concerning Rodney Sinclair provides the following: The June 10, 2014 Decision of the Salem ZBA is hereby annulled, nullified, and voided in its entirety, and that Judgment with prejudice, so annulling, nullifying, and voiding said June 10, 2014 Salem ZBA Decision shall enter forthwith in favor of the Plaintiffs. Emphasis added. 89. Count 1, paragraphs 40-44 inclusive of the Plaintiffs' Complaint appealing said June 10, 2014 Special Permit Decision specifically alleged that"The pre-existing nonconforming uses have been discontinued for more than two years and thus are extinguished." Emphasis added. 90. Said extinguished nonconforming use cannot be revived pursuant to a Special Permit. 91. Attorney Mann does not address this issue in her opinion, notwithstanding that (according to the Board's no. 7 Statement of fact in said Decision"Further, the Board also requested an opinion on whether a previously issued Special Permit was valid.") she was requested to do so. 92. The Plaintiffs respectfully submit that(a) the prior grandfathered, nonconforming use had been discontinued by Christine McClearn for two or more years, (b) that as a result of same said prior grandfathered, nonconforming use became extinguished pursuant to Massachusetts, (c) that said issue was fully addressed and resolved in the Plaintiffs' favor in the February 22, 2016 Agreement For Judgment, and that res judicata now applies, whatever attorney Mann's opinion might state to the contrary. 93. For the foregoing reasons alone,the ZBA exceeded its authority in granting said Special Permit and said August 3, 2016 ZBA Decision must be annulled in its entirety. COUNT IV THE SALEM ZBA IS NOT ENTITLED TO CREATE A THIRD RESIDENTIAL UNIT IN AN R-2 ZONING DISTRICT BY SPECIAL PERMIT 94. Essentially the August 3, 2016 Special Permit Decision of the Salem ZBA created a non- conforming third residential unit at 107 Federal Street. - 13 - 95. Said prior nonconforming use cannot be revived pursuant to a Special Permit, but only by a Variance. 96. As a consequence, the August 3, 2016 Special Permit Decision exceeded the Board's statutory authority. 97. For the foregoing reasons alone,the ZBA exceeded its authority in granting said Special Permit and said August 3, 2016 ZBA Decision must be annulled in its entirety. COUNTY THE PROCEDURE BY WHICH THE SALEM ZBA MADE ITS AUGUST 3, 2016 SPECIAL PERMIT DECISION WAS IMPROPER AND ILLEGAL 98. Attorney Mann's legal opinion is dated July 15, 2016. 99. Three days later, by letter addressed to Ms. Schaeffer and received by the Salem Department of Planning & Community Development on July 18, 2016 (according to its date-stamp), Mr. Jagolta wrote "Kindly modify my application for relief pursuant to request a special permit under Section 9.4 of the Ordinance in accordance with Condition #7 of the 2006 Decision and not under Section 3.33 [sic] of the Ordinance as previously requested." 100. At the regularly scheduled meeting of the Salem ZBA on Wednesday, July 20, 2016, only two days after Mr. Jagolta's July 18, 2016 letter, and at the height of the summer vacation season, the Salem ZBA approved Mr. Jagolta's revised Petition For Special Permit by a bare minimum vote of 4-0. 101. There was no other advertising or other public notice. 102. The Plaintiffs submit that this was essentially a new application based on a new section of the Salem Zoning Ordinance that should have been re-advertised and rescheduled, and the Board's procedure in voting on Mr. Jagolta's July 18, 2016 "modified" Petition was fatally flawed. 103. For the foregoing reasons alone,the ZBA exceeded its authority in granting said Special Permit and said August 3, 2016 ZBA Decision must be annulled in its entirety. COUNT VI ATTORNEY MANN WAS WRONG WHEN SHE RENDERED HER JULY 15, 2016 OPINION THAT THE CORRECT STATUTORY BASIS FOR SUCH SPECIAL PERMIT WAS SECTION 9.4 OF THE SALEM ZONING ORDINANCE INSTEAD OF SECTION 3.2.2 - 14 - 104. Mr. Jagolta's original May 2, 2016 Petition for a Special Permit was based on Section 3.3.2 of the Salem Zoning Ordinance to allow a change from one non-conforming use (a commercial business) to a non-conforming residential use. 105. Section 3.3.2 of the Salem Zoning Ordinance, entitled"Nonconforming Uses,"provides the following in relevant part: The Board of Appeals may award a special permit to change a nonconforming use . . . only if it determines that such change . . . shall not be substantially more detrimental than the existing nonconforming use . . . 106. At the time of the July 20, 2016 vote of the Salem ZBA,there was no longer a grandfathered third non-conforming use at 107 Federal Street, namely the former first floor commercial use. 107. All of the the four most recent Special Permit Petitions relative to the first floor use of 107 Federal Street over a 21-year period (i.e. since March 15, 1995), including Mr. Jagolta's original May 20, 2016 Petition, were pursuant to Section 3.2.2 of the Salem Zoning Ordinance. 108. All of the three most recent Special Permit Decisions of the Salem ZBA relative to the first floor use of 107 Federal Street over a 21-year period(i.e. since March 15, 1995), except for the August 3, 2016 Special Permit Decision concerning Mr. Jagolta, based such decisions on Section 3.2.2 of the Salem Zoning Ordinance. 109. It is clear that a new residential use on the first floor of 107 Federal Street could not meet the standards of Section 3.2.2 of the Salem Zoning Ordinance, given that such residential use will exist 24 hours a day, 7 days a week, and 52 weeks a year, including weekends and holidays. 110. It is also clear that the new residential use approved by the Salem ZBA in its August 3, 2016 Special Permit Decision, is substantially more intense and adverse than the extensive limitation conditions in the March 15, 2016 ZBA Special Permit Decisions concerning the Plant Branch, in the August 17, 2006 Special Permit Decision concerning Christine McCleam, and in the June 10, 2014 Special Permit Decision concerning Rodney Sinclair, all of which placed substantial restrictions on the use of the first floor at 107 Federal Street, including hours and days of operation and the number of employee/occupants. 111. For the foregoing reasons alone, the ZBA exceeded its authority in granting said Special Permit and said August 3, 2016 ZBA Decision must be annulled in its entirety. COUNT VII - 15 - MR.JAGOLTA'S REPRESENTATIONS REGARDING THE APPLICABILTY OF PARKING AT 107 FEDERAL STREET WERE/ARE UNTRUE 112. Mr. Jagolta represented the availability of 8 off-street parking spaces at 107 Federal Street. 113. One of the spaces he showed is a small area immediately to the south of the 107 Federal Street structure that is approximately 6 feet wide. 114. In point of fact, such small area(according to the Salem Assessor's Map)belongs to the abutting property at 21 Beckford Street. 115. The only available off-street parking at 107 Federal Street amounts to three (3) spaces. 116. The Plaintiffs also cite the fact that condition(c) in the August 17, 2006 ZBA Decision granting a Special Permit to Christine McCleam recited the following: c. Parking for the use will be accommodated by the existing on-street parking, or the single off-street parking space at the site. Emphasis added. 117. Parking is already a major problem throughout the McIntire Historic District, including Federal Street in particular. 118. The August 3, 2016 Special Permit Decision only exacerbates that problem. 119. For the foregoing reasons alone,the ZBA exceeded its authority in granting said Special Permit and said August 3, 2016 ZBA Decision must be annulled in its entirety. COUNT VIII BASED ON THE AUGUST 3, 2016 SPECIAL PERMIT DECISION OF THE SALEM ZBA, THERE IS NOTHING TO PREVENT MR. JAGOLTA FROM USING THE FIRST FLOOR SPACE "AIR B&B" TYPE RENTALS 120. As recited in paragraphs no. 63 and 64 hereof, Mr. Jagolta already advertises his "Historic Brick Federal Period Mansion On Fabled Chestnut Street" on a website known as "HomeAway.com. Inc [US], consisting of"6,000 square foot 6 bedroom, 3.5 bath home,"built in 1810," at 41 Chestnut Street, Salem, Massachusetts at an"avg/night" rental of$903.00 and a"Minimum Stay 3-4 nights,"and separately invites the public to "inquire about the guest suite in the property's carriage house, which sleeps two to four people." 121. Mr. Jagolta also represented to the Salem ZBA that he is considering "downsizing" once his children graduate from college by moving from his circa 1810 Federal Mansion at 41 Chestnut Street to the first floor unit of 107 Federal Street, which (according to the Salem City Assessor's records), consists of 821 square feet. - 16 - 122. Whether Mr. Jagolta was sincere when he represented that he planned to relocate from a 6,000 square foot, single-family, historic, and architecturally pure home on Salem's "Fabled Chestnut Street"to a non-interior-historic, renovated former local grocery store, 821-square foot efficiency unit in a 3-unit building at 107 Federal Street, the Plaintiffs submit that it is far more likely that he will use said space for similar short-term rentals, and that the occupants will not care about, or be invested, in their neighborhood. 123. Right now there is nothing in the Zoning or other Ordinances to prevent this from happening. 124. After all, based on Mr. Jagolta's actual advertising of his personal residence at 41 Chestnut Street on"HomeAway.com. Inc [US], thirty, minimum-4-night rentals a year of 41 Chestnut Street would generate gross revenue of$108,360.00 (i.e. $903/night x 4 nights x 30), or more than the$107,000.00 he paid for Unit 1 at 107 Federal Street on March 24, 2016. (It is presently unknown whether Mr. Jagolta's property at 41 Chestnut Street is assessed as a residence or as a business.) 125. The Plaintiffs submit that the foregoing is another instance of how and why the August 3, 2016 Decision of the Salem ZBA is contrary to the explicit Purposes of the Salem Zoning Ordinance, as quoted in paragraph no. 78 of Count I hereof. 126. For the foregoing reasons alone,the ZBA exceeded its authority in granting said Special Permit and said August 3, 2016 ZBA Decision must be annulled in its entirety. COUNT IX The PLAINTIFFS ARE SUBSTANTIALLY AGGRIEVED BY THE AUGUST 3,2016 ZBA DECISION 127. The Plaintiffs have relied on the Salem Zoning Ordinance to protect their property values and the enjoyment of their respective properties and their neighborhood. 128. The August 3, 2016 ZBA Decision substantially undermines their property values, their enjoyment of their properties, and the zoning integrity of their neighborhood. 129. The Plaintiffs are substantially aggrieved by the August 3, 2016 ZBA Decision. 130. For the foregoing reasons alone,the ZBA exceeded its authority in granting said Special Permit and said August 3, 2016 ZBA Decision must be annulled in its entirety. RELIEF SOUGHT The Plaintiffs respectfully request that this Court: - 17 - a. Enter a Judgment in their favor annulling in full the August 3, 2016 Decision of the Salem Zoning Board of Appeals; b. Award the Plaintiffs cost and reasonable attorneys fees in connection with their prosecution of this appeal; and c. Grant such other relief as is just and expedient. Respectfully submitted, Jane Arlander, et al, By their atto August 22, 2016 JBBO# 075280 - 18 - CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL kptt,, p 120 WASHINGTON STREET♦ SALEM,MASSAC*"%f 9 A KIMBERLEY DRISCOLL TELE:978-745-9595 ♦ FAX:978-740-9846 MAYOR CITY rn August 3, 2016 rn X Decision City of Salem Board of Appeals N rnr A public hearing for all persons interested in the petition of RICHARD JAGOLTA, seejQngroa Special Permit per Sec. 3.3.2 Nonconforming Uses of the Salem Zoning Ordinance, to allow j ch =,ge from one non-conforming use to another non-conforming use at 107 FEDERAL STREET-{Mapo 26 Lot 531)(R-2 Zoning District). A public hearing on the above Petition was opened on June 15, 2016 pursuant to M.G.L Ch. 40A, � 11. The hearing continued to July 20, 2016 and closed on that date with the following Salem Board of Appeals members present: Rebecca Curran (Chair), Peter A. Copelas,Jimmy Tsitsinos, Paul Viccica (alternate). The petitioner is seeking a Special Permit per Sec. 3.3.2 Nonconforming Uses to allow a change from one non-conforming use to another non-conforming use. Statements of fact: 1. In the petition date-stamped May 20, 2016, the Petitioner requested a Special Permit pet Sec. 3.3.2 Nonconforming Uses to allow a change from one non-conforming use of a commercial business to a non-conforming residential use. 2. Mr.Jagolta, owner of the first floor unit and petitioner,presented the petition. 3. The three (3) story building, built around 1880, is an existing nonconforming structure located in an R-2 Zoning District. 4. The building is divided into three (3) condominium units that include two (2) residences and one (1) first floor commercial space. 5. In 2014, a Special Permit was granted by the Board of Appeals to allow a real estate consulting office at the property. The Special Permit of 2014 was appealed by abutters and an Agreement for Judgement was executed by the City in the Superior Court action, Arlander v. Sinclair, CA No. 2014- 1030B. 6. In 2006, a Special Permit was issued by the Board of Appeals to allow a graphic design and art gallery at the property. 7. At the June 15, 2016 public hearing, the Board requested an opinion of the City Solicitor to determine whether a Special Permit per Sec. 3.3.2 Nonconforming Uses was the correct form of relief required for the request. Further, the Board also requested an opinion on whether a previously issued Special Permit was valid. 8. On July 20, 2016, the Board discussed the legal opinion of the City Solicitor. City of Salem Board of Appeals August 3,2016 Project: 107 Federal Street Page 2 of 3 9. The memorandum to the Board dated July 14, 2016 provided by Jill Mann of Mann & Mann P.C. concluded the following findings: 1) The Special Permit of 2006 did not lapse as a result of the discontinuation of the permitted business for a period in excess of two years; 2) The Special Permit and the conditions set forth continue to be valid, however at the closure of the business, a Special Condition was triggered that required that any future occupant return to the Board of Appeals to request a new Special Permit for any future use of the property; 3) The current petitioner, Mr.Jagolta, needed to request a special permit under Sec. 9.4 of the Zoning Ordinance of the City of Salem in accordance with Special Condition #7 of the 2006 Special Permit to convert the first floor unit to a residential dwelling unit. 10. On July 18, 2016, the petitioner requested a minor modification to the application to request relief a Special Permit under Sec. 9.4 of the Ordinance in accordance with condition #7 of the 2006 Special Permit and not a under Sec. 3.3.3 Nonconforming Utes as requested in the petition form. 11. The petitioner is proposing to convert the first floor commercial unit into a residential unit. 12. The petitioner is proposing to restore the existing building exterior including the replacement of the aluminum framed plate glass door with one to closely match the other existing front entry door, removal of a large air conditioning unit above the front door entry, removal of plywood covering a former entry door on Beckford Street and installing windows, and removing plywood on a rear window and restoring the window,among other restoration measures. 13. The unit has three (3) existing parking spaces, two (2) tandem spaces in the Federal Street driveway and one (1) space behind the building with access on Beckford Street. 14. At the public hearing eight (8) members of the public spoke in favor of and six (6) spoke in opposition to, the petition. The Salem Board of Appeals, after careful consideration of the evidence presented at the public hearing, and after thorough review of the petition, including the application narrative and plans, makes the following findings: The Board finds any adverse effects of the proposed use will not outweigh its beneficial impacts to the City or the neighborhood as a residential dwelling unit and the use is consistent with the existing building and neighborhood. 1. Social, economic and community needs are served by this proposal 2. There will be less impact on the neighborhood regarding traffic flow and safety as the proposal will convert the first floor unit from a commercial space to a residential unit. 3. The utilities and other public services are adequate. 4. The proposal fits with the neighborhood character as the petitioner is proposing to rehabilitate the exterior first floor unit to be more in keeping with the historic character of the building and the proposed residential unit is consistent with the existing uses in the building and neighborhood. 5. There are no changes to impacts on the natural environment. 6. The potential economic and fiscal impact,including impact on City services, tax base and employment will be positive. City of Salem Board of Appeals August 3,2016 Project: 107 Federal Street Page 3 of 3 On the basis of the above statements of facts and findings, the Salem Board of Appeals voted four (Rebecca Curran (Chair), Peter A. Copelas,Jimmy Tsitsinos, Paul Viccica (alternate) in favor and none (0) opposed, to allow the petitioner to convert the fust floor unit to a residential dwelling unit subject to the following terms, conditions and safeguards: Standard: 1. The Petitioner shall comply with all city and state statutes, ordinances, codes and regulations. 2. All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner 3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 4. Petitioner shall obtain a building permit prior to beginning any construction. 5. Exterior finishes of new construction shall be in harmony with the existing structure. 6. A Certificate of Occupancy shall be obtained. 7. A Certificate of Inspection is to be obtained. 8. Petitioner shall obtain street numbering from the City of Salem Assessor's Office and shall display said number so as to be visible from the street. 9. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to, the Planning Board. Special Condition: 1. Any person who proposes a change of use to occupy this space is required to apply for a new Special Permit per Section 9.4 of the Salem Zoning Ordinance. A UE COPY ITTVST i y. Rebecca Curran, Chair dry CIt1.RK Board of Appeals SAL'E:IWMASS.. A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appea!from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed nitbin 20 days of fkn8 of this decision in the office of the City Clerk. Pursuant to the Massachusetts General Lmvs Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take effect until a copy of the decision bearing the certificate of the City Clerk has been filed with the Essex South Registry of Deeds. h v CITY OF SALEM, MASSACHUSETTS sj BOARD OF APPEAL A 11• 120 WAsiuNGTON STREET+ SALEM,MAssAN KIMBERLEY DRiscoLL TELE:978-745-9595 ♦ FAX:978-740-9846 MAYOR - CITY August 3, 2016 Decision City of Salem Board of Appeals A public hearing for all persons interested in the petition of RICHARD JAGOLTA, seeking a Special Permit per Sec. 3.3.2 Nonconforming Uses of the Salem Zoning Ordinance, to allow a change from one non-conforming use to another non-conforming use at 107 FEDERAL STREET (Map 26 Lot 531)(R-2 Zoning District). A public hearing on the above Petition was opened on June 15, 2016 pursuant to M.G.L Ch. 40A, g 11. The hearing continued to July 20, 2016 and closed on that date with the following Salem Board of Appeals members present: Rebecca Curran (Chair),Peter A. Copelas,Jimmy Tsitsinos, Paul Viccica (alternate). The petitioner is seeking a Special Permit per Sec. 3.3.2 Nonconforming Uses to allow a change from one non-conforming use to another non-conforming use. Statements of fact: 1. In the petition date-stamped May 20, 2016, the Petitioner requested a Special Permit per Sec. 3.3.2 Nonconforming Uses to allow a change from one non-conforming use of a commercial business to a non-conforming residential use. 2. Mr.Jagolta, owner of the first floor unit and petitioner,presented the petition. 3. The three (3) story building, built around 1880, is an existing nonconforming structure located in an R-2 Zoning District. 4. The building is divided into three (3) condominium units that include two (2) residences and one (1) fust floor commercial space. 5. In 2014, a Special Permit was granted by the Board of Appeals to allow a real estate consulting office at the property. The Special Permit of 2014 was appealed by abutters and an Agreement for Judgement was executed by the City in the Superior Court action, Arlander v. Sinclair, CA No. 2014- 1030B. 6. In 2006, a Special Permit was issued by the Board of Appeals to allow a graphic design and art gallery at the property. 7. At the June 15, 2016 public heating, the Board requested an opinion of the City Solicitor to determine whether a Special Permit per Sec. 3.3.2 Nonconforming Urex was the correct form of relief required for the request. Further, the Board also requested an opinion on whether a previously issued Special Permit was valid. 8. On July 20, 2016, the Board discussed the legal opinion of the City Solicitor. City of Salem Board of Appeals August 3,2016 Project: 107 Federal Street Page 2 of 3 9. The memorandum to the Board dated July 14, 2016 provided by Jill Mann of Mann & Mann P.C. concluded the following findings: 1) The Special Permit of 2006 did not lapse as a result of the discontinuation of the permitted business for a period in excess of two years; 2) The Special Permit and the conditions set forth continue to be valid, however at the closure of the business, a Special Condition was triggered that required that any future occupant return to the Board of Appeals to request a new Special Permit for any future use of the property; 3) The current petitioner,Mr.Jagolta, needed to request a special permit under Sec. 9.4 of the Zoning Ordinance of the City of Salem in accordance with Special Condition #7 of the 2006 Special Permit to convert the first floor unit to a residential dwelling unit. 10. On July 18, 2016, the petitioner requested a minor modification to the application to request relief a Special Permit under Sec. 9.4 of the Ordinance in accordance with condition #7 of the 2006 Special Permit and not a under Sec. 3.3.3 Nonconforming Urex as requested in the petition form. 11. The petitioner is proposing to convert the first floor commercial unit into a residential unit. 12. The petitioner is proposing to restore the existing building exterior including the replacement of the aluminum framed plate glass door with one to closely match the other existing front entry door, removal of a large air conditioning unit above the front door entry, removal of plywood covering a former entry door on Beckford Street and installing windows, and removing plywood on a rear window and restoring the window, among other restoration measures. 13. The unit has three (3) existing parking spaces, two (2) tandem spaces in the Federal Street driveway and one (1) space behind the building with access on Beckford Street. 14. At the public hearing eight (8) members of the public spoke in favor of and six (6) spoke in opposition to, the petition. The Salem Board of Appeals, after careful consideration of the evidence presented at the public hearing, and after thorough review of the petition, including the application narrative and plans, makes the following findings: The Board finds any adverse effects of the proposed use will not outweigh its beneficial impacts to the City or the neighborhood as a residential dwelling trait and the use is consistent with the existing building and neighborhood. 1. Social, economic and community needs are served by this proposal 2. There will be less impact on the neighborhood regarding traffic flow and safety as the proposal will convert the first floor unit from a commercial space to a residential unit. 3. The utilities and other public services are adequate. 4. The proposal fits with the neighborhood character as the petitioner is proposing to rehabilitate the exterior first floor unit to be more in keeping with the historic character of the building and the proposed residential unit is consistent with the existing uses in the building and neighborhood. 5. There are no changes to impacts on the natural environment. 6. The potential economic and fiscal impact,including impact on City services, tax base and employment will be positive. City of Salem Board of Appeals August 3,2016 Project: 107 Federal Street Page 3 of 3 On the basis of the above statements of facts and findings, the Salem Board of Appeals voted four (Rebecca Curran (Chair), Peter A. Copelas,Jimmy Tsitsinos, Paul Viccica (alternate) in favor and none (0) opposed, to allow the petitioner to convert the first floor unit to a residential dwelling unit subject to the following terms, conditions and safeguards: Standard: 1. The Petitioner shall comply with all city and state statutes, ordinances, codes and regulations. 2. All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner 3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 4. Petitioner shall obtain a building permit prior to beginning any construction. 5. Exterior finishes of new construction shall be in harmony with the existing structure. 6. A Certificate of Occupancy shall be obtained. 7. A Certificate of Inspection is to be obtained. 8. Petitioner shall obtain street numbering from the City of Salem Assessor's Office and shall display said number so as to be visible from the street. ' 9. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to, the Planning Board. Special Condition: 1. Any person who proposes a change of use to occupy this space is required to apply for a new Special Permit per Section 9.4 of the Salem Zoning Ordinance. JP c et &4&�Je Rebecca Curran, Chair Board of Appeals A COPY OF THIS DECISION HAS BEEN Frt.F.n WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed within 20 days of fhng of this decision in the offtre of the City Clerk Pursuant to the Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permit granted herein shall not take flea until a copy of the decision bearing the certifcate of the City Clerk has been fled with the Essex South Registry of Deeds. 1 CITY OF S.ALEiM, 1VIASSACHUSETTS BOARD OF APPEAL �9F�/MINE DOSP I20W:vSIIING'IONS'I'WI;I' # S :AtvSSVAIL1I1TI:e0f9717� o hliAIla,lI I.w D uscOl'). tPa.F;:9'8-745-959 i f.AA:978-7�QJ , MA)OR )846 C- a r m � �T z June 10, 2014 �m o Decision r City of Salem Board of Appeals U Petition of RODNEY SINCLAIR requesting t`/ Criteria and Sec. 3.3.2 Nonconforming Uses of the special Zoning Ordinance dint per anceon ,, t allow-Specthe operation of a real estate consulting office in a building currently in a nonconforming use, at the property located at 107 FEDERAL STREET (112 Zoning District). A public hearing on the above Petition was opened on May 21, 2014 pursuant to tM.G.I, Ch. 40A, l L The (hearing was closed on that date with the following Salem Board of Appeals members present: bls. Harris acting Chair), Mr. Dionne, Mr. Duffy, Mr. Watkins, and Mr. Copelas (Alternate). The Petitioner seeks a Special Permit per Section 9.4.2 'yP"al1"`t7irib — CQileiia and Section 3.3.2 Nnuoan%awniig hies of the Salem Zoning Ordinance. Statements of fact: I. In the petition date-stamped April 30, 2014, the Petitioner requested a Special Permit to allow the operation of a real estate consulting office in a building currently in a nonconforming use. 2. Mr. Rodney Sinclair, petitioner, presented the petition for the property at 107 Federal Street. 3. A draft list of special conditions was submitted to the Board by the applicant. This fist of conditions was prepared in collaboration with concerned abutters. 4. The requested relief, if granted, would allow the Petitioner to operate a real estate consulting office at the property. 5. Three letters in opposition to the petition were submitted to the Board, and were read into the public recod at the hearing. 61. At the public hearing, two abutters expressed their support of the petition contingent on the special conditions discussed at the hearing, and a third abutter expressed their support of the petition. The Salem Board of Appeals, after careful consideration of the evidence presented at the public hearing, and after thorough review of the petitions, including the application narrative and plans, and the Petitioner's presentation and public testimony, makes the following findings that the proposed project meets the provisions of the City of Salem Zoning Ordinance: Findings I. The proposed nonconforming use is no more detrimental than the previous nonconforming use of the property. 2. The scope of the proposed use, with the conditions set by the Board, is consistent with the scope of die previous use allowed bv' Special Permit, and as Sncli, the proposed use does not constitute a substantial detriment to the public good, it does not nullify or substantially derogate' from the inreut or purpose of the zoning ordinance. Clty of Salem Board of Appeals lune 10,2014 Project: 107 Federal Street Page 2 of 2 (MOn the basis of the above statements of facts and findings, the Salem Board of Appeal, voted five (5) in favor r. Watkins, A•Is. Harris, Mr. Dionne, Air. Copelas, and Mr. Duffy in flvor) and none (0), to grant the requested Special Permit to allow the operation of a real estate consulting office in a building currently in a nonconforming use subject to die following terms, conditions, and safeguards: 1. "The Petitioner shall comply with all city and state statutes, ordinances, codes and regulations. 2. 1\11 construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner 3. All requirements of the Salem Fire Department relative to smoke and Fre safety shall be stricdc adhered to. 4. A Certificate of Occupancy is to be obtained. 5. A Certificate of Inspection is to be obtained. G. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to, the Planning Board. 7. The petitioner shall be limited to the office use for a non-retail real estate consulting business only, subject to the other conditions of this Special Permit, and such business shall be limited to the first floor of the site only. 8. There shall be no advertisements posted on the premises. 9. The real estate business shall not include any retail or commercial sales or real estate brokerage sales activity of any kind on the premises. 10. There shall never be any more than three (3) people affiliated with the business on-site at any one time. 11. The hours of operation will be limited to Mondav to Friday from 10:00am to 7:00pm and shall nor include holidays. 12. This Special Permit shall expire with this business (Sinclair Development Solutions) and any other business seeking to occupy this space is required to apply for a new Special Permit. Annie Harris, Acung Chair Board of Appeals :A COPY"OF PHIS D13C[SI0N' HAS BEEN FILED WFIJ I THE PLANNING BOARD AND'I'I-11 CI,I),CI.1.1ZK ,'Wea!%mm IN, eleenion. i%ag, shall be lvaele prrwool to,Senior, /7 n%the General Laws Chopler 0A, m<d shall be filed wilbin 20 A(l)it ol_filiuq of Ibis derision in The ollire of/he Cil), Clerk. Parsnaut to Ibe,Wassaehrrseli, Genera!Lows Cbap/er 4011, Sedimr /7, /he I Lrianee or Spe.ia!Permre grrurterl herein rGrr(l ua!fake c(lecl mrli!a yapy of/be 1&lriou herazug the temili aie o/the CrO,Clerk has been filer!x•i1b the E,c,e% Snrdh Regu1�•o�Deeds. COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO: JANE ARLANDER, CAROL CARR, DONALD ) GILLIGAN, DARROW LEBOVICI, and REGINA ) MANISCALCO, ) PLAINTIFFS ) .� V. .� o r RODNEY SINCLAIR, and REBECCA CURRAN, RICHARD DIONNE, MIKE DUFFY, ANNIE HARRIS, ) = N m J THOMAS WATKINS, PETER A. COPELAS, and JAMES ) =" �,x D TSITSINOS, BEING THE REGULAR AND FIRST AND ) ALTERNATE MEMBERS OF THE ZONING BOARD OF ) APPEAL OF THE CITY OF SALEM, MASSACHUSETTS, > w DEFENDANTS ) ^' NOTICE TO SALEM CITY CLERK OF COMPLAINT PURSUANT TO M.G.L. CHAPTER 40A, SECTION 17 APPEALING THE JUNE 10, 2010 DECISION OF THE CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL GRANTING A SPECIAL PERMIT AT 107 FEDERAL STREET SALEM MASSACHUSETTS 1, John H. Carr, Jr., attorney for the Plaintiffs in the above-entitled action, hereby give notice to the City Clerk of the City of Salem, Massachusetts and to the Salem Zoning Board of Appeals that said Plaintiffs have filed a civil Complaint with the Essex Superior Court appealing the June 10, 2014 Decision of the City of Salem, Massachusetts Board of Appeals (hereinafter"Salem ZBA") granting a Special Permit to Rodney Sinclair to allow the operation of a non-conforming real estate consulting office at 107 Federal Street, Salem, Massachusetts 01970, which property is located in a two-family (R-2) residential zoning district. Said June 10, 2014 Salem ZBA Decision was filed with the office of the Salem City Clerk on June 10, 2014. A copy of said Complaint filed as Essex Superior Court Civil Action No. / —7054 f3 on June 27, 2014 is attached hereto. Respectfull/�ubmitted, Jane Arl `dq, et, , �u ttorney, June 27, 2014 Jol /H. rr, Jr., Es 9 North Street Salem, MA 01 978-80 - 4 0# 075281 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO: JANE ARLANDER, CAROL CARR, DONALD ) GILLIGAN, DARROW LEBOVICI, and REGINA ) MANISCALCO, ) PLAINTIFFS ) V. ) RODNEY SINCLAIR, and REBECCA CURRAN, ) RICHARD DIONNE, MIKE DUFFY, ANNIE HARRIS, ) THOMAS WATKINS, PETER A. COPELAS, and JAMES ) TSITSINOS, BEING THE REGULAR AND FIRST AND ) ALTERNATE MEMBERS OF THE ZONING BOARD OF ) APPEAL OF THE CITY OF SALEM, MASSACHUSETTS, ) DEFENDANTS ) COMPLAINT PURSUANT TO M.G.L. CHAPTER 40A, SECTION 17 APPEALING THE JUNE 10, 2014 DECISION OF THE CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL GRANTING A SPECIAL PERMIT TO RODNEY SINCLAIR CONCERNING 107 FEDERAL STREET, SALEM, MASSACHUSETTS This is an appeal from a Decision of the City of Salem, Massachusetts Board of Appeal hereinafter"ZBA" or "Salem ZBA" or"Board"), dated June 10, 2014, and filed with the Salem City Clerk at 1:30 p.m. on June 10, 2014, granting Rodney Sinclair a Special Permit to allow the operation of a non-conforming real estate consulting office at the first floor of 107 Federal Street, Salem, Massachusetts, which property is located in a two-family (R-2) residential zoning district, on the grounds that said ZBA Decision was/is arbitrary, capricious, unreasonable, violated due process, exceeded the Board's authority, was based on legally and factually untenable grounds, and was wrong as a matter of law. A certified copy of said June 10, 2014 Decision is attached hereto as Exhibit A. PARTIES Plaintiffs 1. Plaintiff Jane Arlander resides at 93 Federal Street, Salem, Massachusetts 01970, which is within the 300 foot notice requirement of the Salem Zoning Ordinance. 2. Plaintiff Carol Carr resides at 7 River Street, Salem, Massachusetts 01970, which is within the 300 foot notice requirement of the Salem Zoning Ordinance, and is a co-owner of said property. 3. Plaintiff Donald Gilligan resides at 2 Andover Street, Salem, Massachusetts 01970, which is within the 300 foot notice requirement of the Salem Zoning Ordinance, and is a co-owner of said property with his wife, Plaintiff Regina Maniscalco. 4. Plaintiff Darrow Lebovici resides at 122 Federal Street, Salem, Massachusetts 01970, which is within the 300 foot notice requirement of the Salem Zoning Ordinance, and is a co-owner of said property. 5. Plaintiff Regina Maniscalco resides at 2 Andover Street, Salem, Massachusetts 01970, which is within the 300 foot notice requirement of the Salem Zoning Ordinance, and is a co-owner of said property with her husband, Plaintiff Donald Gilligan. Defendants 6. Defendant Rodney Sinclair (hereinafter"Mr. Sinclair") who listed his address as "107 Federal Street" on his April 30, 2014 Petition for the special permit is the Petitioner and Beneficiary of the June 10, 2014 Decision of the Salem ZBA being appealed. 7. Defendant Rebecca Curran, who resides at 14 Clifton Avenue, Salem, Massachusetts 01970, is a regular member and Chair of the Salem ZBA who did not participate in the May 21, 2014 vote of the Salem ZBA on Mr. Sinclair's Petition. 8. Defendant Richard Dionne, who resides at 23 Gardner Street, apartment 1, Salem, Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Special Permit at the May 21, 2014 hearing of the Salem ZBA on Mr. Sinclair's Petition. 9. Defendant Mike Duffy, also believed to be known as Michael Duffy, who resides at I Warren Court, Salem, Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Special Permit at the May 21, 2014 hearing of the Salem ZBA on Mr. Sinclair's Petition. 10. Defendant Annie Harris, who resides at 28 Chestnut Street, Salem, Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Special Permit and was the acting Chair at the May 21, 2014 hearing of the Salem ZBA on Mr. Sinclair's Petition. 11. Defendant Thomas Watkins, who resides at 24 Surrey Road,.Salem, Massachusetts 01970, is a regular member of the Salem ZBA, who voted to grant said Special Permit at the May 21, 2014 hearing of the Salem ZBA on Mr. Sinclair's Petition. 2 12. Defendant Peter A. Copelas, who resides at 57 Buffum, Salem, Massachusetts 01970, is an alternate member of the Salem ZBA, who voted to grant said Special Permit at the May 21, 2014 hearing of the Salem ZBA on Mr. Sinclair's Petition. 13. Defendant James Tsitsinos, who resides at 6C Wharf Street, Salem, Massachusetts 01970, is an alternate member of the Salem ZBA who did not participate in the May 21, 2014 vote of the Salem ZBA on Mr. Sinclair's Petition. 14. Plaintiffs Jane Arlander, Carol Carr, Donald Gilligan, Regina Maniscalco, and Darrow Lebovici have standing to bring this action, as all are substantially aggrieved by the June 10, 2014 Decision of the Salem ZBA granting said Special Permit. JURISDICTION 15. This Court has jurisdiction over this matter pursuant to Section 17 of Chapter 40A of the Massachusetts General Laws. 16. This case is timely, as it has been filed within twenty (20) days from when the June 10, 2014 Decision of the Salem ZBA was filed with the Salem City Clerk. PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS 17. 107 Federal Street, Salem, Massachusetts is a 3-story Victorian structure with a Mansard roof which is located in a two-family (R-2) residential zoning district. 18. Said property is also located in both the National Register of Historic Places and in the so-called McIntire Historic District adopted by the Salem City Council pursuant to Chapter 40C of the Massachusetts General Laws. 19. Said property consists of three condominium units, one on each of the building's three floors. 20. There are three off-street parking spaces at the property, one for each of the units. 21. The second and third floor condominiums are residential condominiums. 22. The use of the first floor unit is what is under dispute in this action.. 23. By Decision dated August 17, 2006 (hereinafter "August 17, 2006 Decision"), which was entered in the office of the Salem City Clerk on September 11, 2006, the owner of the first floor condominium at 107 Federal Street, Salem, Massachusetts, Christine McClearn, obtained a Special Permit "to allow for a graphic design business and art gallery..." A copy of said August 17, 2006 Decision is attached hereto as Exhibit B. 24. Christine McClearn and her husband, Keith A. McClearn, are the current owners of the first floor condominium at 107 Federal Street, Salem, Massachusetts. - 3 - 25. Defendant Rodney Sinclair is a tenant of the McClearns and currently occupies their first floor condominium at 107 Federal Street, Salem, Massachusetts. 26. Among the explicit findings in the August 17, 2006 Decision are the following: 5. The petitioner will only utilize the first floor of the property for the graphic design business. 6. The hours of operation of the graphic design business will be Monday-Friday during regular business hours, and the art gallery will operate during the same business hours with the only exception being an occasional Saturday or Sunday appointment as needed and an occasional evening gallery reception for artists. 7. Parking for the use will be accommodated by the existing on-street parking, or the single off-street parking space at the site. 8. The graphic design business shall function on an appointment only basis and shall not function as retail space. 27. Among the explicit conditions in the August 17, 2006 Decision are the following: 4. The petitioner shall operate the graphic design business on the first floor of the site only. 5. The art gallery shall be limited to showing paintings and photographs displayed on the walls and shall not include the display or sale of crafts,jewelry or other art-craft objects. 6. There shall be only three (3) employees on site (including the business owners) at any one time for the operation of the graphic design business. 28. In the last (nearly) eight years the first floor condominium has rarely, if ever, functioned as an art gallery or graphic design studio, and said space has largely been devoid of any activity whatsoever during said period. 29. Defendant Rodney Sinclair filed his within handwritten Petition for Special Permit on or about April 30, 2014. A copy of said Petition is attached hereto as Exhibit C. 30. In said Petition Mr. Sinclair represented that the "Current Property Use" is "mixed use residential& retail' when in fact the property was not operating as a retail use and said retail use was specifically prohibited by Condition No. 8 in the August 17, 2006 Decision —see paragraph 24(8) above. - 4 - 31. Mr. Sinclair also attached a single-page "Statement of Grounds" in support of his Petition, which included the following sentences: Sinclair Development Solutions (SDS) is proposing to open a real estate consulting office at 107 Federal Street, unit 1. I began SDS in 2009 after working for the Boston Redevelopment Authority for almost 10 years. At the BRA I was in charge of overseeing the permit applications for large scale development projects in the City of Boston... I began to notice there was no one helping these developers and so I saw an opportunity to take my skill-sets and turn them into a business. So in 2009 I made the leap and began SDS, which specializes in real estate development permits. Working out of my home for the next 4 years I contracted over 40 projects in the Greater Boston area. The projects ranged from basement renovations to 80 unit residential projects... Since obtaining my real estate sales person license in 20111 have been able to combine my permitting project management with project creation and buyer representation into a full service consulting shop that helps developers find the property, permit their project, and sell the units on the back end... My business is not focused on selling and buying real estate. We specialize in giving people advice, home owners and large scale developers alike... I plan on holding educational courses for people in the neighborhood... My business is supported by large scale commercial deals that I am engaged in... Again, I am licensed as a Sales Person, but my primary business comes from large scale developers, not local homeowners looking to sell or rent their property. I share this business with my wife, who will be working with me on a regularly[sic] basis. I do have an intern who will be in and out of the office, but he lives local and will be traveling on foot or by bicycle. We have one parking space deeded to us so we will have a minimal impact on the parking situation. Emphasis added. 32. After some initial discussion among members of the Board, during which it became clear that none of the ZBA members had been given copies of the August 17, 2006 Decision by the ZBA staff or were aware of what the particulars of said pre-existing Special Permit Decision were, the May 21, 2014 hearing began by Mr. Sinclair speaking in favor of his Petition followed by a ZBA staff person reading into the record three lengthy letters, one from Joel Caron, one from Plaintiff Darrow Lebovici, and one from Plaintiff Jane Arlander, all of which were in solid opposition to Mr. Sinclair's Petition. - 5 - 33. As part of his oral presentation Mr. Sinclair submitted a single typewritten page containing 9 proposed special permit conditions drafted by John 1-I. Carr, Jr. of 7 River Street, Salem, MA 01970. A copy of said proposed 9 conditions is attached hereto as Exhibit D. At the time Mr. Carr was only representing himself and acting as an individual. Mr. Sinclair said he was agreeable to each of said conditions. 34. Mr. Carr, who is an attorney with offices at 9 North Street, Salem, Massachusetts, has since been retained by the Plaintiffs to represent them in this action. 35. Following the reading of the three opposition letters into the record, the hearing was then thrown open to the public. 36. Mr. Carr distributed copies of his 9 proposed conditions and copies of the August 17, 2006 Decision concerning 107 Federal Street to each member of the Board, and also said that he was conditionally in favor of Mr. Sinclair's Petition so long as the substance of said conditions were incorporated into the ZBA Decision; otherwise he would appeal any decision not containing same. 37. Mr. Carr's sentiments were echoed by his wife, Plaintiff Carol Carr, and by Barbara Cleary of 104 Federal Street, Salem, Massachusetts. Ms. Cleary is traveling out-of-state and could not be contacted prior to the filing of this Complaint. 38. The Board then proceeded to modify Mr. Carr's conditions, and ultimately approved Mr. Sinclair's Petition unanimously. 39. As to each of the following Counts, the Plaintiffs reaffirm, re-allege, and incorporate all of the prior allegations contained in paragraphs 1-36 inclusive above. ARGUMENT COUNTI The pre-existing nonconforming uses have been discontinued for more than two years and thus are extinguished. 40. In the last (nearly) eight years the first floor condominium at 107 Federal Street, Salem, Massachusetts, has rarely, if ever, functioned as an art gallery or graphic design studio, and said space has largely been devoid of any activity whatsoever during said period. 41. As such, the nonconforming art gallery use and nonconforming graphic design business uses described in the August 17, 2006 Decision of the Salem ZBA became extinguished after they were effectively discontinued for a period of two years or longer, at which time the property reverted to a two-family. - 6 - 42. Indeed, even the Minutes of the May 21, 2014 ZBA hearing reflect that "The space has been vacant for the past couple of years." 43. Thus, Sections 9.4.2 and 3.3.2 of the Salem Zoning Ordinance, which were the basis the Board relied on in granting Mr. Sinclair his requested zoning relief, were inapplicable as a matter of law. 44. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit, and said June 10,2014 Decision of the Salem ZBA should be annulled in its entirety. COUNT 11 The Special Permit was granted in violation of Article 3.3.2 of the Salem Zoning Ordinance. 45. Article 3.3.2 of the Salem Zoning Ordinance, entitled "Nonconforming Uses,"provides the following in relevant part: The Board of Appeals may award a special permit to change a nonconforming use in accordance with this section only if it determines that such change or extension shall not be substantially more detrimental than the existing nonconforming use to the neighborhood. The following types of changes to non conforming uses may be considered by the Board of Appeals...2. Change from one nonconforming use to another, less detrimental, nonconforming use. Emphasis added. 46. Even if the pre-existing nonconforming uses at 107 Federal Street have not been discontinued for a period of two years or longer, the new nonconforming use approved by the ZBA at the May 21, 2014 hearing on Mr.Sinclair's Petition involve greater nonconforming activity than that which has been in effect since August 17, 2006. 47. The Plaintiffs are substantially aggrieved by the June 10, 2014 ZBA Decision. 48. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit, and said June 10, 2014 Decision of the Salem ZBA should be annulled in its entirety. 49. In the single-page "Statement of Grounds" attached to his Petition For Special Permit, Mr. Sinclair stated (in relevant part) that"As we all know, there are a number of businesses on Federal Street, the most famous one being the Peabody Essex Museum." 50. In point of fact, Federal Street between North and Boston Streets, which is a distance of approximately a quarter mile and which is where 107 Federal Street is located, is entirely - 7 - residential save for the Pierce Nichols House owned by the Peabody Essex Museum, which is a house museum, and St. James's Church. 51. Both properties are not businesses within the meaning of the Salem Zoning Ordinance, and both uses exist at said locations as a matter of right pursuant to said Ordinance. 52. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit, and said June 10, 2014 Decision of the Salem ZBA should be annulled in its entirety. COUNT III The Special Permit was granted in violation of Article 9.4.2 of the Salem Zoning Ordinance. 53. Section 9.4.2 of the Salem Zoning Ordinance, entitled "Criteria" under"SPECIAL PERMITS," provides the following in relevant part: Special Permits shall be granted by the Special Permit Granting Authority, unless otherwise specified herein, only upon its written determination that the adverse effects of the proposed use will not outweigh its beneficial impacts to the City or the neighborhood, in view of the particular characteristics of the site, and of the proposal in relation to that site. In addition to any specific factors that may be set forth in this Ordinance, the consideration shall include consideration of each of the following: 1. Community needs which are served by the proposal; 4. Neighborhood character; 6. Potential economic and fiscal impact, including impact on City Services, tax base, and employment. Emphasis added. 54. The June 10, 2014 Decision does not contain the required written determination that "the adverse effects of the proposed use will not outweigh its beneficial impacts to the City or the neighborhood, in view of the particular characteristics of the site, and of the proposal in relation to that site. 55. In point of fact, there are no such community needs which are served by Mr. Sinclair's proposal; the only needs being served are those of Mr. Sinclair. 56. The proposal likewise does not fit the historic and uniformly residential character of the neighborhood. 8 - 57. The potential economic and fiscal impact, including impact on City Services, tax base, and employment does not depend on Mr. Sinclair's business being located at 107 Federal Street. 58. In point of fact there is plenty of office space available in areas that are already zoned for office use in Salem, including in downtown Salem without having to adversely effect the historic Federal Street neighborhood or, for that matter, restrict Mr. Sinclair in the operation of his business. 59. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit, and said June 10, 2014 Decision of the Salem ZBA should be annulled in its entirety. COUNT IV Mr. Sinclair has already begun violating the conditions of the June 10, 2014 Decision, even before the expiration of the appeal period. 60. Condition No. 1 in the June 10, 2014 Decision provides that"The Petitioner shall comply with all city and state statutes, ordinances, codes and regulations. Emphasis added. 61. Mr. Sinclair has violated said condition by parking along the sidewalk in front of 107 Federal Street, notwithstanding that he has a dedicated off-street parking space at said address. Parking is not allowed on that side of the street in that location. 62. In addition, Mr. Sinclair has recently announced that he intends to have an opening celebration at 107 Federal Street, at which event the entire Salem Chamber of Commerce will be invited. 63. Both activities violate said condition. 64. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit, and said June 10, 2014 Decision of the Salem ZBA should be annulled in its entirety. COUNT V The June 10, 2014 Decision of the Salem ZBA violates the explicit Purposes of the Salem Zoning Ordinance. - 9 - 65. Article 1.1 of the Salem Zoning Ordinance, entitled "Purpose," provides the following in relevant part: For the purpose of promoting the health, safety, convenience, morals or welfare of the inhabitants of Salem, the zoning regulations and restrictions of this ordinance, ordained in accord with the provisions of Chapter 40A of the General Laws...are designed among other purposes to lessen congestion in the streets,...to prevent overcrowding of land,...to avoid undue concentration of population,...to facilitate the adequate provision of transportation..., to conserve the value of land and buildings, to encourage the most appropriate use of land throughout the City; and to preserve and increase its amenities,...to prevent ... community blight... 66. Among many of its other problems, as alleged above, the June 10, 2014 Decision of the Salem ZBA violates several of the above express Purposes of the Salem Zoning Ordinance. 67. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit, and said June 10, 2014 Decision of the Salem ZBA should be annulled in its entirety. RELIEF SOUGHT The Plaintiffs respectfully request that this Court: a. enter a Judgment in their favor annulling in full the June 10, 2014 Decision of the Salem Zoning Board of Appeals; b. award the Plaintiffs cost and reasonable attorneys fees in connection with their prosecution of this appeal; and c. grant such other relief as is just and expedient. Respectfully submitted, lander, al., By-theira e}, �� June 27, 2014 o H. Carr sq. C North S t Salem, MA 01970 BBO# 075281 Phone: (978 7-3264 Fax �8) 825-0068 - 10 - a CITY OFSALEMI, MASSACHUSETTS Cl r`f eF SALEM, MA _ BOARD OF APPEAL . CLERKS OFFICE_ 120 WASHINGTON STREET. 3RD FLOOR , SALEM. MASSACHUSETTS 01970 TELEPHONE: 978-745-9595 FAx: 978-740-9846 200.$ER 1 t ,P�_1: '311 KIMBERLEY DRISCOLL MAYOR August 17,2006 Decision Petition of Christine McClearn requesting a Special Permit to allow a graphic design and art gallery. at the property located at 107 Federal Street, R-2 District City of Salem Zoning Board of Appeals A public hearing on the above petition was opened on August 16, 2006 pursuant to Mass General law Ch.40A,Sec. 11,the following Zoning Board members present: Robin Stein, Annie Harris, Stephen Pinto,Bonnie Belair,Elizabeth Debsid. The petitioner, Christine McCleam,is requesting a Special Permit pursuant to section 5-3 0)to allow for a graphic design business and art gallery located at 107 Federal Street Street,Salem,in the Two Family Residential(R-2)zoning district The Board of Appeals,after careful consideration of the evidence presented at the public hearing,and after thorough review of the Petition submitted,makes the following findings of fact: 1. The property at 107 Federal Street is within the R-2 zoning district. . 2. The petitioner,Christine McCleam, will run the graphic design business as primarily a graphic design studio, with an ancillary use as an art gallery. 3. The petitioner is requesting an extension of the previously non-conforming use to allow the graphic design business use for the site. 4. The site was previously used as a florist shop, a pre-existing non-conforming use V 5. The petitioner will only utilize the first floor of the property for the graphic desigr business. 6. -The hours of operation of the graphic design business will be Monday-Friday during regular business hours, and the art gallery will op.;rate during the same business hours with the only exception being an occasional Saturday or Sunday appointment as needed and an occasional evening gallery reception for artists. 7. Parking for the use will be accommodated by the existing on-street parking,or the single off-street parking spac&oathe site. A 8. The graphic design business shall function on an appointment only basis and shall not function as a retail space.. 9. There were two members of the public who spoke in favor of the petition,with consideration of conditions of operation being limited to no greaff than that of On the basis of the above findings of fact,including all evidence presented at the public hearing, including,but not limited to,the Petition, the Zoning Board of Appeals concludes as follows: 1 The petitioner's request for a Special Permit to allow the use of a graphic design business and art gallery at 107 Federal Street does not constitute a substantial detriment to the public good. 2. She requested Special Permit does not nullify or substantially derogate from the intent or purpose of the zoning ordinance. 3• �e petitioner's proposal will be continuing a pre-existing 11011-conforming In consideration of the above, the Salem Board of Appeals voted, five(5)in favor(Stein, Harris,Pinto, Debski.Belair)and none(0)opposed,to grant the request for a Special Permit,subject to the following terms,conditions, and safeguards; I. Petitioner shall comply with all city and state statutes,ordinances,codes and regulations. 2. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 3. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to, the Planning Board.' 4 s ttee�oner ll ° ate the graphic design business on the first floor of the A 5. The an gallery shall be limited to showing pig and phokeraphs displayed IM the walls and shall not include the display or sale of crafts,ie or other art-craft type objects 6. There shall be only three(3)employees on site(incl the bu+sinessowneat any erre thne for the of the graphic destgw . a 7. This Speyial Permit will expire with this business(Studio 107 and awillmyard -M )and� pmt.ther Hess seeiQng to occ for a new S upY dlis space is required to apply Annie C.Harris Salem Zoning Board of Appeals A COPY OF THIS DECISION HAS BEEN Ftr -D WITH THE PUNNING BOARD AND THE CITY W CLERK Appeal from this decision if any,shall be made Pursuant to Section 17 of die Massachusetts Genual Laws Chapter 40th ami steal!be tried 0 days of�g of this derision in the office of the City Clerk Pursuant to the Massachusetts Warned herein shall�t take effect until a Chapter 40 9 Section t!,the Variance or Special Permit 20 days have elapsed and no appeal has been filed.or PY Of the decision beanng cern8cate of the City cleric that dtsmt&vd of denied and is record m the Sooth Essex"'if M happeal��filed.that it has been 'k Owner record or is recce and torted on the ow='s Certifipte of Tteeds�Bei��undo the name of R z. �tv---� CrrY OF SALEM, MASSACHUSETTSBOARD OF APpFA i 44 , Mo, PETITION FORM CITY OF SALEALR4ASSACHUSETTS s: BOARD OF APPEALS ` 120 W_ASFIINGTON STREET,3RD FLOOR 1014 APR 30 p )2 00 &<LETLP.Ls,SSACHUSETTS01970 FILE t? i` ITY CLERX. SAS Ett MAss. Thoma+St.Pierre,Director ofIu-,Tsectioaal Service Phone_973-619-5541/ Fag 9iS-710.9346 KaWERLEY DRISCOLL - Danahieron,StaffPLwner MAYOR Phone:M-619.5685/ Fax:978-404404 TO THE BOARD OFAPPEAM: The Uudersigneddrepresent that he%sh{e is/are the owners of a certain parcel of land located at: Address: 10-7 erct-ere \ Cjry Zoning District:_ qLaw An apPlIcadon h being submitted to the Boatel of Appeal for die following reasost(s):This statement must describe what you propose to build,the dimensions,the zone property is in,and the zoning requirements.(Evrnnple: 1 am proposing to construct a 10'x 10'one story addition to my home located at 3 Salem Lorre in the R-2 Zoning District The Zoning Ordurowe requires the minimran depth of the rear yard to be 30 feet. The current depth of nn, rear brad is 32 feet theproposed addition nnould reduce the depth of the rear yard to 22 feet) 2e<c s f1 3C�tc� g_-(- /`S3 vfr\+ QcldresS Ft .lnlcln �c (mC ca t*11, rx a For this reason I am requesting: ( ) Variance(S)from provisions of Section of the Zoning Ordinance,specifically from lte. moumum depL'r of rear ym-d). What is allowed is (ft?rq f3?stories? °a?), and what I amPo ro si P n3 is !h?sq ft?stories?Pia). ( )A Special Permit under Section 4!2.L lof the Zoning Ordinance in order to a t�e c,tJ. ,% ( )Appeal of the Decision of the Building Inspector(described below): ( )Comprehensive Penn it for construction of low or moderate income housing(describe-below): Current Property Use: mn%A ci U.Ce Are Lot Dimensions included?( )yes (E-mr;pla7ua FamrF Homy The Undersigned hereby petitions the Board of Appeals to van the terms of the Salem Zoning Ordinance and allow the projecfto be constructed as per the plans submitted,as the enforcement of said Zoning By-Laws would involve practical difficulty or unnecessary hardship to the Undersigned andrelief may be granted without substantial) derogating from the intent and purpose of the Zoning Ordinance. Statement of Grounds 107 Federal Street Salem, MA. Oig7o Petitioner: Rodney Sinclair, Sinclair Development Solutions Sinclair Development Solutions (SDS) is proposing to open a real estate consulting office at 107 Federal Street, unit 1. SDS is a full service real estate censultin9 service originally based out of Boston MA. I began SDS in 2009 after working for the Boston Redevelopment Authority for _almost 10 years.At the BRA I was in charge of overseeing the permit applicatiomfor large Cate development projects in the City of Boston. Over my tenure I reviewed over 50 projects at..oss the city. I began to notice there was no one helping these developers and so I saw an opportunity to take my skill-sets and turn them into a business. So in 20091 made the leap and began SDS, which specializes in real estat nt permits. Working out of my home for the next 4 years I con o projects in the Gre ton area.The projects ranged from basement - renovations o: ucriEresideaitiat projects ince obtainin m real estate sales 2011 1 have n able to combine g y Person license in r� miffing project management wittsj creati©rr and service censulting shop that helps developers find property, permit their project.and self the units on the back�: Since moving from Jamaica Plain to Lynn and having a young child (17 mo) I have began to invest in my business and in such it has began to grow.Although the office space is in a residential neighborhood I believe it is in no way harmful to the character of the neighborhood. As we all know, there are a number of businesses on Federal Street, the most famous one being the Peabody Essex Museum- My office space has been a number of businesses over the years, most recently a graphic design and gallery studio, and before that a florist. In terms of highbst and best uses for an office, real estate is usually seen as a high end use. My business is not focused on selling and buying real estate. We specialize in giving people advice, home owners and large scale developers alike. Given the high number of homeowners in the area, I fwlieve tha y usmess wi serve as a compliment to those looking to understand the value of _ th.r'-,property as well as those looking to further invest in their homes.Tplan on hokGng ed�gatiorratcourses P u►the-neighborhood; all geared towards raising the awareness and knowledge of individuals so that they can better understand their relationship to their Property and the community around them. My businesj is suppo deals-that l am engaged is dependent on wal a real estate o ccs are. g m' SDS in no way Sates Persarr, but Wim, t am licensed as a homeowners looki CO o senor bent their grope Thatbeingd tdevhere not bepers, not man soliciting my services because e Y people ationships with people in my community but that will primarily be meta ting asdo oma good neighbor on developing and being involved in my community. I share this business with my wife, who will be working with me on a regularly basis. I do have ark Wern who will be in and out of the office, but he lives local and will be traveling on foot or by bicycle. We have one parking space deeded to us so we will have a minimal impact on the. parking situation. as a whole, we believe that our business will be a much better neighbor than the previous y,.iphic design studio.We are focused on building community and in so many ways we exude these practices in the way we engage our work. We plan on making this our home and in doing so we plan on giving to the Salem community. We hope that this application can be approved and we may open.our doors to the Salem community this coming May. We look forward to processing our request with you and our neighbors. Sincerely, Rodney Sinclair Owner 1. Petitioner shall comply with all city and state statutes, ordinances, codes and regulations. 2. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 3. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to, the Planning Board and the Salem Historical Commission. 4. In no event shall the real estate consulting business have a more deleterious effect on the R-2 residential zoning district in which it is located than has been the case with the pre-existing non-conforming graphic design business (Studio 107 and ancillary art gallery owned and operated by Christine McClearn.) 5. The petitioner shall be limited to the office use for a non-retail, real estate consulting business only, subject to the other conditions of this Special Permit, and such business shall be limited to the fust floor of the site only. 6. The real estate consulting business shall not include any retail or commercial sales activity of any kind on the premises. The premises shall only be used as the office space where those affiliated with the business can perform their private office duties. All meetings with customers or clients shall occur off-site. Without limiting the generality of the foregoing there shall be no advertising posted on the premises. 7. There shall never be any more than(3)people affiliated with the business on site (including the business owner). This 3-person limitation includes (without limitation) employees, interns, paraprofessionals, support staff, or any other individuals of whatever description. 8. The hours of operation will be limited to Monday to Friday from 8:30 a.m. to 6:00 p.m. (and shall not include holidays). At no time shall the business become a nuisance to the residential historic neighborhood, including (without limitation) as a result of excessive noise, hours of operation, litter, or demands on parking in the neighborhood. 9. This Special Permit will expire upon the first to occur of the expiration or relocation of the business (Sinclair Development Solutions), the change of the majority of ownership of same, or the violation of any of the conditions of this Special Permit. Any future business seeking to occupy this space is required to apply for a new Special Permit. M saw CITY OF SALEM, MASSAC�ILJSET'IS BUILDING DEPARTMENT 120 WASHINGTON STREET,3" FLOOR TEL. (978) 745-9595 FAx(978) 740-9846 KIMBERLEY DRISCOLL MAYOR THOMAS STTIERRE DIRECTOR OF PUBLIC PROPERTY/BUILDING COMMISSIONER March 20, 2015 Joel Caron 4 Andover Street Salem, MA 01970 Re: 107 Federal Street Dear Mr. Caron: I have reviewed the Special Permit granted to Mr. Sinclair for this property. I agree that Mr. Sinclair was in violation of one of the conditions,#8, which stated that no advertising shall be posted on the property. I have addressed this with Mr. Sinclair, but before I did, the advertising had already been removed. As far as the on-street parking is concerned,I have spoken with the Salem Police,Traffic Division, and they asked that you relay your concerns to them directly. You may contact Lt.Robert Preczewski, Salem Police Dept., 95 Margin Street, Salem, MA. In closing,I see no violation warranting asking the Board of Appeals to revoke the Special Permit for 107 Federal Street. If you feel you are aggrieved by my opinion,you may file an Appeal with the Salem Zoning Board of Appeals. Sincerely, Thomas St. Pierre 4 Andover St. Salem, MA 01970 RECEIVED February 16, 2015 Zoning Board of Appeals Salem City Hall FEB i 12015 93 Washington St. DEPT. OF PLANNwc a Salem, MA 01970 COMMUNITY DEVELOPMENT Dear Sir or Madam: Within a day or two after you recently granted a special use permit for a"real estate development" business at 107 Federal St., in an R-2 district, signs appeared in that location for "S.D.S. Landscaping." In the picture below, taken in September.of 2014, you will note that company's signs in the windows, and see its truck illegally parked in front of 107 Federal St. T4; yiEO' $. 15An A A - c Since that time, the landscaping business has apparently grown from one truck to two trucks, both of which can be seen and heard zooming into and out of the neighborhood constantly, with . apparently little regard for traffic and parking regulations. The recent picture below shows a red truck and the same blue truck, now with lettering that includes a telephone number for a landline registered to 107 Federal St. Incidentally, the snow blower in the blue truck was left in that location, running and unattended, for about a half an hour before this picture was taken. RECEIVED INSPECTIONAL SERVICES John H. Carr, Jr., Esq. 1114 JUN 30 P 12. 51 ' 9 North Street Salem,MA 01970 Phone: 978-807-3264 Fax: 978-825-0068 June 27, 2014 By Hanc Civil Clerk Essex Superior Court P&TY�A 34 Federal Street TyFCupj"A� Salem, MA 01970 SUN oUNrAQ Coe 1"4 2 204 sok Re: Jane Arlander, et al. v. Rodney Sinclair, et al. `.., Dear Sir or Madam: C<E9 Enclosed for filing in the above-captioned matter please find: 1. Complaint Pursuant To M.G.L. Chapter 40A, Section 17 Appealing The June 10, 2014 Decision of the City Of Salem, Massachusetts Board of Appeal Granting A Special Permit To Rodney Sinclair Concerning 107 Federal Street, Salem, Massachusetts; 2. Civil Action Cover Sheet; 3 My check in the amount of$280.00 to cover the $275.00 filing fee, and the $5.00 fee for an original Summons. Would you kindly acknowledge your receipt of the foregoing by date-stamping the ei.closed copy of this letter and return same with our messenger. If you have any questions or problems with the enclosed, kindly notify me immediately. Thank you in advance for your attention to the foregoing. Very truly yours, John H. Carr, Jr. cc City Solicitor Elizabeth Rennard, Esq.—By Hand Mr. Rodney Sinclair Plaintiffs—By Hand COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO: / 4 JANE ARVANDER, CAROL CARR,DONALD ) GILLIGAN,DARROW LEBOVICI, and REGINA ) MANISCALCO, ) PLAINTIFFS ) V. ) FONTyF�'�r�O RCDNEY SINCLAIR and REBECCA CURRAN, ) �NTyoF OIJ RICTHOMAS WATKINS,PETER A. COPELAS andJAMES ) B y 2014 �SSFX TSITSINOS, BEING THE REGULAR AND FIRST AND ) ALTERNATE MEMBERS OF THE ZONING BOARD OF APPEAL OF THE CITY OF SALEM, MASSACHUSETTS, ) DEFENDANTS ) COMPLAINT PURSUANT TO M.G.L. CHAPTER 40A, SECTION 17 APPEALING THE JUNE 10,2014 DECISION OF THE CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL GRANTING A SPECIAL PERMIT TO RODNEY SINCLAIR CONCERNING 107 FEDERAL STREET, SALEM, MASSACHUSETTS This is an appeal from a Decision of the City of Salem, Massachusetts Board of Appeal hereinafter"ZBA"or"Salem ZBA"or`Board"), dated June 10, 2014, and filed with the Salem City Clerk at 1:30 p.m. on June 10, 2014, granting Rodney Sinclair a Special Permit to allow the operation of a non-conforming real estate consulting office at the first floor of 107 Federal Street, Salem,Massachusetts, which property is located in a two-family,(R-2)residential zoning district, on the grounds that said ZBA Decision was/is arbitrary, capricious, unreasonable, violated due process, exceeded the Board's authority, was based on legally and factually untenable grounds, and was wrong as a matter of law. A certified copy of said June 10,2014 Decision is attached hereto as Exhibit A. PARTIES Plaintiffs r 1: Plaintiff Jane Arlander residers at 93 Federal Street, Salem, Massachusetts 01970,which is within the 300 foot notice requirement of the Salem Zoning Ordinance. 2. Plaintiff Carol Carr resides at 7 River Street, Salem, Massachusetts 01970, which is within the 300 foot notice requirement of the Salem Zoning Ordinance, and is a co-owner of said property. 3. Plaintiff Donald Gilligan resides at 2 Andover Street, Salem, Massachusetts 01970, which is within the 300 foot notice requirement of the Salem Zoning Ordinance, and is a co-owner of said property with his wife, Plaintiff Regina Maniscalco. 4. Plaintiff Darrow Lebovici resides at 122 Federal Street, Salem, Massachusetts 01970, which is within the 300 foot notice requirement of the Salem Zoning Ordinance, and is a co-owner of said property. 5. Plaintiff Regina Maniscalco resides at 2 Andover Street, Salem, Massachusetts 01970, which is within the 300 foot notice requirement of the Salem Zoning Ordinance, and is a co-owner of said property with her husband, Plaintiff Donald Gilligan. Defendants 6. Defendant Rodney Sinclair (hereinafter"Mr. Sinclair") who listed his address as "107 Federal Street" on his April 30, 2014 Petition for the special permit is the Petitioner and Beneficiary of the June 10, 2014 Decision of the Salem ZBA being appealed. 7. Defendant Rebecca Curran, who resides at 14 Clifton Avenue, Salem, Massachusetts 01970, is a regular member and Chair of the Salem ZBA who did not participate in the May 21, 2014 vote of the Salem ZBA on Mr. Sinclair's Petition. 8. Defendant Richard Dionne, who resides at 23 Gardner Street, apartment 1, Salem, Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Special Permit at the May 21, 2014 hearing of the Salem ZBA on Mr. Sinclair's Petition. 9. Defendant Mike Duffy, also believed to be known as Michael Duffy, who resides at 1 Warren Court, Salem, Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Special Permit at the May 21, 2014 hearing of the Salem ZBA on Mr. Sinclair's Petition. 1 i. Defendant Annie Harris, who resides at 28 Chestnut Street, Salem, Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Special Permit and was the acting Chair at the May 21, 2014 hearing of the Salem ZBA on Mr. Sinclair's Petition. 11. Defendant Thomas Watkins, who resides at 24 Surrey Road, Salem, Massachusetts 01970, is a regular member of the Salem ZBA, who voted to grant said Special Permit at the May 21, 2014 hearing of the Salem ZBA on Mr. Sinclair's Petition. - 2 - 12. Defendant Peter A. Copelas, who resides at 57 Buffum, Salem,Massachusetts 01970, is an alternate member of the Salem ZBA, who voted to grant said Special Permit at the May 21, 2014 hearing of the Salem ZBA on Mr. Sinclair's Petition. I Defendant James Tsitsinos, who resides at 6C Wharf Street, Salem,Massachusetts 01970, is an alternate member of the Salem ZBA who did not participate in the May 21, 2014 vote of the Salem ZBA on Mr. Sinclair's Petition. 14. Plaintiffs Jane Arlander, Carol Carr, Donald Gilligan, Regina Maniscalco, and Darrow Lebuvici have standing to bring this action, as all are substantially aggrieved by the June 10, 2014 Decision of the Salem ZBA granting said Special Permit. JURISDICTION 15. This Court has jurisdiction over this matter pursuant to Section 17 of Chapter 40A of the Massachusetts General Laws. 16. This case is timely, as it has been filed within twenty (20) days from when the June 10, 2014 Decision of the Salem ZBA was filed with the Salem City Clerk. PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS' 17. 107 Federal Street, Salem, Massachusetts is a 3-story Victorian structure with a Mansard roof which is located in a two-family (R-2)residential zoning district. 18. Said property is also located in both the National Register of Historic Places and in the so-called McIntire Historic District adopted by the Salem City Council pursuant to Chapter 40C of the Massachusetts General Laws. 19. Said property consists of three condominium units, one on each of the building's three floors. 20. There are three off-street parking spaces at the property, one for each of the units. 21. The second and third floor condominiums are residential condominiums. 22. The use of the first floor unit is what is under dispute in this action.. 23. By Decision dated August 17, 2006 (hereinafter"August 17, 2006 Decision"), which was entered in the office of the Salem City Clerk on September 11, 2006,the owner of the first floor condominium at 107 Federal Street, Salem, Massachusetts, Christine McCleam, obtained a Special Permit"to allow for a graphic design business and art gallery..." A copy of said August 17, 2006 Decision is attached hereto as Exhibit B. 24. Christine McCleam and her husband, Keith A. McCleam, are the current owners of the first floor condominium at 107 Federal Street, Salem, Massachusetts. - 3 - 25. Defendant Rodney Sinclair is a tenant of the McClearns and currently occupies their first floor condominium at 107 Federal Street, Salem, Massachusetts. 26. Among the explicit findings in the August 17, 2006 Decision are the following: 5. The petitioner will only utilize the first floor of the property for the graphic design business. 6. The hours of operation of the graphic design business will be Monday-Friday during regular business hours, and the art gallery will operate during the same business hours with the only exception being an occasional Saturday or Sunday appointment as needed and an occasional evening gallery reception for artists. 7. Parking for the use will be accommodated by the existing on-street parking, or the single off-street parking space at the site. 8. The graphic design business shall function on an appointment only basis and shall not function as retail space. 27 Among the explicit conditions in the August 17, 2006 Decision are the following: 4. The petitioner shall operate the graphic design business on the first floor of the site only. 5. The art gallery shall be limited to showing paintings and photographs displayed on the walls and shall not include the display or sale of crafts,jewelry or other art-craft objects. 6. There shall be only three (3) employees on site (including the business owners) at any one time for the operation of the graphic design business. 28. In the last(nearly) eight years the first floor condominium has rarely, if ever, functioned as an art gallery or graphic design studio, and said space has largely been devoid of any activity whatsoever during said period. 29. Defendant Rodney Sinclair filed his within handwritten Petition for Special Permit on or about April 30, 2014. A copy of said Petition is attached hereto as Exhibit C. 30. In said Petition Mr. Sinclair represented that the"Current Property Use" is "mixed use residential&retail"when in fact the property was not operating as a retail use and said retail use was specifically prohibited by Condition No. 8 in the August 17, 2006 Decision —see paragraph 24(8) above. - 4 - 31. Mr. Sinclair also attached a single-page "Statement of Grounds" in support of his Petition, which included the following sentences: Sinclair Development Solutions (SDS) is proposing to open a real estate consulting office at 107 Federal Street, unit 1. I began SDS in 2009 after working for the Boston Redevelopment Authority for almost 10 years. At the BRA I was in charge of overseeing the permit applications for large scale development projects in the City of Boston... I began to notice there was no one helping these developers and so I saw an opportunity to take my skill-sets and turn them into a business. So in 2009 I made the leap and began SDS, which specializes in real estate development permits. Working out of my home for the next 4 years I contracted over 40 projects in the Greater Boston area. The projects ranged from basement renovations to 80 unit residential projects... Since obtaining my real estate sales person license in 20111 have been able to combine my permitting project management with project creation and buyer representation into a full service consulting shop that helps developers find the property, permit their project, and sell the units on the back end... My business is not focused on selling and buying real estate. We specialize in giving people advice, home owners and large scale developers alike... I plan on holding educational courses for people in the neighborhood... My business is supported by large scale commercial deals that I am engaged in... Again, I am licensed as a Sales Person, but my primary business comes from large scale developers, not local homeowners looking to sell or rent their property. I share this business with my wife, who will be working with me on a regularly[sic] basis. I do have an intern who will be in and out of the office, but he lives local and will be traveling on foot or by bicycle. We have one parking space deeded to us so we will have a minimal impact on the parking situation. Emphasis added. 32. After some initial discussion among members of the Board, during which it became clear that none of the ZBA members had been given copies of the August 17, 2006 Decision by the ZBA staff or were aware of what the particulars of said pre-existing Special Permit Decision were, the May 21, 2014 hearing began by Mr. Sinclair speaking in favor of his Petiti,.on followed by a ZBA staff person reading into the record three lengthy letters, one from'Joel Caron, one from Plaintiff Darrow Lebovici, and one from Plaintiff Jane Arlander, all of which were in solid opposition to Mr. Sinclair's Petition. - 5 - 33. As part of his oral presentation Mr. Sinclair submitted a single typewritten page containing 9 proposed special permit conditions drafted by John H. Carr, Jr. of 7 River Street, Salem, MA 01970. A copy of said proposed 9 conditions is attached hereto as Exhibit D. At the time Mr. Carr was only representing himself and acting as an individual. Mr. Sinclair said he was agreeable to each of said conditions. 34. Mr. Can, who is an attorney with offices at 9 North Street, Salem, Massachusetts,has since been retained by the Plaintiffs to represent them in this action. 35. Following the reading of the three opposition letters into the record, the hearing was then thrown open to the public. 36. Mr. Can distributed copies of his 9 proposed conditions and copies of the August 17, 2006 Decision concerning 107 Federal Street to each member of the Board, and also said that he was conditionally in favor of Mr. Sinclair's Petition so long as the substance of said conditions were incorporated into the ZBA Decision; otherwise he would appeal any decision not containing same. 37. Mr. Can's sentiments were echoed by his wife, Plaintiff Carol Can, and by Barbara Cleary of 104 Federal Street, Salem, Massachusetts. Ms. Cleary is traveling out-of-state and could not be contacted prior to the filing of this Complaint. 38. The Hoard then proceeded to modify Mr. Carr's conditions, and ultimately approved Mr. Sinclair's Petition unanimously. 39. As to each of the following Counts, the Plaintiffs reaffirm, re-allege, and incorporate all of the prior allegations contained in paragraphs 1-36 inclusive above. ARGUMENT COUNTI The pre-existing nonconforming uses have been discontinued for more than two years and thus are extinguished. 40., In the last(nearly) eight years the first floor condominium at 107 Federal Street, Salem, Massachusetts, has rarely, if ever, functioned as an art gallery or graphic design studio, and said space has largely been devoid of any activity whatsoever during said period. 41. As such, the nonconforming art gallery use and nonconforming graphic design business uses described in the August 17, 2006 Decision of the Salem ZBA became extinguished after They were effectively discontinued for a period of two years or longer, at which time the property reverted to a two-family. - 6 - 42. Indeed, even the Minutes of the May 21, 2014 ZBA hearing reflect that "The space has been vacant for the past couple of years." 43. Thu€-, Sections 9.4.2 and 3.3.2 of the Salem Zoning Ordinance, which were the basis the Board relied on in granting Mr. Sinclair his requested zoning relief, were inapplicable as a matter of law. 44. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit, and said June 10,2014 Decision of the Salem ZBA should be annulled in its entirety. COUNT II The Special Permit was granted in violation of Article 3.3.2 of the Salem Zoning Ordinance. 45. Article 3.3.2 of the Salem Zoning Ordinance, entitled"Nonconforming Uses,"provides the following in relevant part: The Board of Appeals may award a special permit to change a nonconforming use in accordance with this section only if it determines that such change or extension shall not be substantially more detrimental than the existing nonconforming use to the neighborhood. The following types of changes to non conforming uses may be considered by the Board of Appeals...2. Change from one nonconforming use to another, less detrimental, nonconforming use. Emphasis added. 46. Even if the pre-existing nonconforming uses at 107 Federal Street have not been discontinued for a period of two years or longer, the new nonconforming use approved by the ZBA at the May 21, 2014 hearing on Mr. Sinclair's Petition involve greater nonconforming activity than that which has been in effect since August 17, 2006. 47. The Plaintiffs are substantially aggrieved by the June 10, 2014 ZBA Decision. 48. For the foregoing reasons alone,the Board exceeded its authority in granting said Special Permit, and said June 10, 2014 Decision of the Salem ZBA should be annulled in its entirety. 49. In the single-page "Statement of Grounds"attached to his Petition For Special Permit, Mr. Sinclair stated (in relevant part) that"As we all know, there are a number of businesses on Federal Street, the most famous one being the Peabody Essex Museum." 50. In point of fact, Federal Street between North and Boston Streets, which is a distance of approximately a quarter mile and which is where 107 Federal Street is located, is entirely - 7 - residential save for the Pierce Nichols House owned by the Peabody Essex Museum, which is a house museum, and St. James's Church. 51. Both-properties are not businesses within the meaning of the Salem Zoning Ordinance, and both uses exist at said locations as a matter of rieht pursuant to said Ordinance. 52. For the foregoing reasons alone,the Board exceeded its authority in granting said Special Permit, and said June 10,2014 Decision of the Salem ZBA should be annulled in its entirety. COUNT III The Special Permit was granted in violation of Article 9.4.2 of the Salem Zoning Ordinance. 53. Section 9.4.2 of the Salem Zoning Ordinance, entitled"Criteria"under"SPECIAL PERMITS,"provides the following in relevant part: Special Permits shall be granted by the Special Permit Granting Authority, unless otherwise specified herein, only upon its written determination that the adverse effects of the proposed use will not outweigh its beneficial impacts to the City or the neighborhood,in view of the particular characteristics of the site, and of the proposal in relation to that site. In addition to any specific factors that may be set forth in this Ordinance,the consideration shall include consideration of each of the following: 1. Community needs which are served by the proposal; 4. Neighborhood character; 6. Potential economic and fiscal impact, including impact on City Services,tax base, and employment. Emphasis added. 54. The June 10, 2014 Decision does not contain the required written determination that "the adverse effects of the proposed use will not outweigh its beneficial impacts to the City or the neighborhood, in view of the particular characteristics of the site, and of the proposal in relation to that site. 5:. In point of fact, there are no such community needs which are served by Mr. Sinclair's proposal; the only needs being served are those of Mr. Sinclair. 56. The proposal likewise does not fit the historic and uniformly residential character of the neighborhood. - 8 - Si, The potential economic and fiscal impact, including impact on City Services,tax base, and employment does not depend on Mr. Sinclair's business being located at 107 Federal Street. 58. In p6int of fact there is plenty of office space available in areas that are already zoned for office use in Salem, including in downtown Salem without having to adversely effect the historic Federal Street neighborhood or, for that matter, restrict Mr. Sinclair in the operation of his business. 59. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit, and said June 10,2014 Decision of the Salem ZBA should be annulled in its entirety. COUNT IV Mr. Sinclair has already begun violating the conditions of the June 10, 2014 Decision, even before the expiration of the appeal period. 60 Condition No. 1 in the June 10, 2014 Decision provides that"The Petitioner shall comply with all city and state statutes, ordinances, codes and regulations. Emphasis added. 61. Mr. Sinclair has violated said condition by parking along the sidewalk in front of 107 Federal Street, notwithstanding that he has a dedicated off-street parking space at said address. Parking is not allowed on that side of the street in that location. 62. In addition, Mr. Sinclair has recently announced that he intends to have an opening celebration at 107 Federal Street, at which event the entire Salem Chamber of Commerce will be invited. 63. Both activities violate said condition. 64. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit, and said June 10, 2014 Decision of the Salem ZBA should be annulled in its entirety. COUNT V The June 10,2014 Decision of the Salem ZBA violates the explicit Purposes of the Salem Zoning Ordinance. - 9 - 65. Article 1.1 of the Salem Zoning Ordinance, entitled "Purpose,"provides the following in relevant part: For the purpose of promoting the health, safety, convenience, morals or welfare of the inhabitants of Salem, the zoning regulations and restrictions of this ordinance, ordained in accord with the provisions of Chapter 40A of the General Laws...are designed among other purposes to lessen congestion in the streets....to prevent overcrowding of land....to avoid undue concentration of population,...to facilitate the adequate provision of transportation..., to conserve the value of land and buildings, to encourage the most appropriate use of land throughout the City; and to preserve and increase its amenities,...to prevent ... community blight... 66. Among many of its other problems, as alleged above, the June 10, 2014 Decision of the Salem ZBA violates several of the above express Purposes of the Salem Zoning Ordinance. 67. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit, and said June 10, 2014 Decision of the Salem ZBA should be annulled in its entirety. RELIEF SOUGHT The Plaintiffs respectfully request that this Court: a. enter a Judgment in their favor annulling in full the June 10, 2014 Decision of the Salem Zoning Board of Appeals; b. award the Plaintiffs cost and reasonable attorneys fees in connection with their prosecution of this appeal; and c. grant such other relief as is just and expedient. Respectfully submitted, Jane Arlander, et al., By their attorney, June 27, 2014 John H. Carr, Jr., Esq. 9 North Street Salem, MA 01970 BBO# 075281 Phone: (978) 807-3264 Fax: (978) 825-0068 - 10 - ;,,.;—, � ;� - a�:r�T;, - � :r>. �: _ . ,. it cr. tu • q J�, �- w 7 1 1 •' • � J� / I � 1 - 11 � I • • • •.. .It 1 . 1 � � ' '. n1 ' t." w . 1 1L .u� 11 . � • . / 1 1 v N• ,N _ 1 nl. � • r �Im . r. u - • _ m• • •�•.a �• •1 • u._ w w•e- n• - • �• . .1 amu• • • _ «. � 1 1 . . r• 1 .. • . nen . r 1 ... . _ • - .0 _ . • . • � - .. 1 - 1 1 .a Y, t.• 1 Y•. tu.. • 11 - • • 1 an . r 41 1 u • • 1 • 1 • mm • 1• 't •1 L 41 r - /• 1 • • • 1 •u. • - 1 u•. . 1 .: 1 1 • .• 1 nt. • 1 w • 1 y • • •GY. f" • • �. V. 1- • I •11 . �• •• 11(-• • • • _ -••1 • • 1 1 � •.1 ..• • - • 1 / 1 wt • 1 It •i•1 . • . •r1.1 • U c h - nt . / • bfa �[V 1 i • • •.;1 • • � • I •. 0 . /� / _ 1 • t •1 1 1 _ • I.K / 1 �11Y / •I l .i1 • 1 1/ - • 1 ' `t • 1 • 11 1 � • �I I / /• 111 t •111 . 1 1. •.••�i • 1 • t • •W 1 • • •Ib •[ t • 41 q • 1 w.1• 1 •w. • • • t Y I t II' • u 1 • 1 �. •) • 1•• • - • // • 1111 ' /1 •Ilt 1 CttyoMalem Board of Appeals June 10,2014 Project: 107 Federal Street Page 2 of 2 On the basis of the above statements of facts and findings,the Salem Board of Appeals voted five(5)in favor (Mr. Watkins, Ms. Hams, Mr. Dionne, Mr. Copelas, and Mr. Duffy in favor) and none (0), to grant the requested Special Permit to allow the operation of a real estate consulting office in a builgjng currently in a nonconforming use subject to the following terms, conditions,and safeguards: .1. The Petitioner shall comply with all city and state statutes,ordinances,codes and regulations. 2. All construction shall be done as per the plans and dimensions submitted to and approv-1 by the Building Commissioner 3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 4. A Certificate of Occupancy is to be obtained. 5. A Certificate of Inspection is to be obtained. 6. Petitioner is to obtain approval from any City Board or Commission having jurisdiction induding,but not limited to,the Planning Board. 7. The petitioner shall be limited to the office use for a non-retail real estate consulting businesa only, subject to the other conditions of this Special Permit, and such business shall be limited to the first floor of the site only. 8. There shall be no advertisements posted on the premises. 9. The real estate business shall not include any retail or commercial sales or real estate brokerage sales activity of any kind on the premises. 10. There shall never be any more than three (3) people affiliated with the business on-site at any one time. 11. The hours of operation will be limited to Monday to Friday from 10:00atn to 7:00pm and shall not include holidays. 12. This Special Permit shall expire with this business (Sinclair Development Solutions) and any-other business seeking to occupy this space is required to apply for a new Special Permit A ' r7 iXit O Annie Harris,Acting Chau Board of Appeals A COPY OF THIS DECISION HAS BEEN FILED WITH TBE PLANNING BOARD AND THE CITY CLERK Appeal from tbir dedaon,if ay,shall be made pursuant to Secaon 17 of the Ma sachweas General L ms Chapter 40A,and shall be fk,:within 20 days of filing of thin deacon in the offer of the City Clerk Pursuant to the Massachaseus General Laws Chapter 40A, Section 11, the Variance or Special Pentntgranted berein shall not take ect un&1 a ropy of the decision bearing the c entficate of the City Clerk has been filed with the F sav South Registry of Deeds. s. � Q j < . .«.: .uta :• �• ' — "' — .f fig- i; iw '�/ >1 ✓-amt l'.-'.f•�t it � ts']t •.i. ... )�.. \_ill ._ t_: a 1 - � V:�fi • �If f.. lii: y'� - 1f:lf �.\'}t[I: F; rt e a\frcr- iuuur. - �1 -Hf \ "..If._- - rl<: r,r•. t`t.i;'\J:I�ryG 35.. i Pic 40 1ynt e- kl r✓.�1 ct 1:21.'. x::i>- •: IiTA le .� 8, ie>; design btu sha11 c�sa basisand shay ;�. rwt as a setaR space.. . - 9. 'ibcm were two membeas of the pttW who spoke in favor cf the part , ' �conrLtiat<safbe� odtEtrra�easertJtaetrheto6 '_- 3a die bases do of foot,i all evidence presented at hearm&mchiding bttt not ftmd ta;the Petition,the Zoning Board of Appeals coachtdes as follows: Vii. 11seleddo, es's far a Spatial Pt M*to aU0W the tree of a graphic design basiness and art gallery at 107 Federal Steed does am e a substantial&tdmew to the public good. 2. ILe tnquested Spoaai P+esadt does not nuftarsubstamialftyhum theiraftorpaqmofthazoniagardinsocs. 3. The petitioner's proposal will be cow a poo-exp Ban-cont'ounin8 tree. ht coon of the above,ire Sam Board of Appeals vagi,free(5)is favari(Stsio, Hams,moo,Debsid,Bdaa)and now(0)opposed,to grant the tagaest for a Special Permit,subjea to the following terms,tat,and safiewnk 1. Peddoew shall copy with all city and state st ,ordhissiam codes and 2 ARreqW=memoftboSak=F=DqmummttdadvotDsnwW=dfnsa&Ly shall be strictly adhered to. 3. Petite is to obtain approval Aran any City Board or Cain having junsdic tm mcladir&but no limited W�the Planning Board: 4. The ptsl operate the gteprx dt btu an the lhst Scor of the site zufy� 5. TheutpDaysballbelbuitedowdowiagi g asidphoWsplisdupbw Awthe walls and wall oat include the display or safe of c Mfr jew or odw art-caafl typo o'bjec�. . . 6. Thew dM be a*Sew(3) ansine( -the W _. . sa�enetimctiartheoperation of thegtaphic ` Y i . . p„ � � .. �Li'19 ' r a � �� . � �. � � .� � �� �� � ~ W � • � . . a .� . � , a :� � � ��� � � � � � � . � � � � �� � � �� ��� � .� � �� � � � �� � � �� A � � �A .. i"�. n V �OF ,�C�'$aABt)tI�A�EAI.s CITY OF&ALFA XAS&AOMJSrM. BOARD ofd .MR 30 P 'tt 08 M WASMGtON MOM 3w FLOOR &&JIM&WMACHUS&MOIM FEE# s P;eae ,�ra�«tm:d T�M"A SALEM.MAn y . D:ah�a,Bt�Phtauer 3daraa Phovc9'8.99ISM/i=979-74.04 4 T(>=9B0ARD0VAVfK& : eU �b isfara'thea .da pecsetofhmdhxmedat R Adm 10? FccterAk An asmi�sd oa tveBea►dstt bea tLe Ea T�% dese�e,ems yos ghee to band,8ie tk z�r P9 ss m,asd rhes t +' ' vS �R@18's10'�ssAapae!t°�ellm*ekccs3Sa6aeLwaRSrths�Zog t herigdniamree*e4tbsa ��aess�y�mTae36�Sksemretat �'mR,+' �� � 32 �sa�dra�ereike }d�kefl�� �Y.�dAoZZJEtd1J y T���3✓A6� � QEfP✓� /few Q+P1L1 �61.oti7C_ �m� r(I"�.��1 i. _i 4 tz �9�CCsv�� Sai®e�iSd�%uc.�- - t For die t;ees�i a+xD�: )`i s)ampmvwmof Seed= ofthezoa*wbmco.tp fi m IL4-, =&mmm AF&erwyartV• True isaUowmdis ( '� ' W)'ta arhmI ams is /�9xf�Psz a9%�j V ( )AspeddPeelkwdar ._ A, low. k"IniSS t� {-aa`k '° .( 3Ap�alo�EtloDae�uaofr�egTasPeetaa'{ bel�'k ( )C xPenahr cti*noflmoriseotaehwdq(deserbebdmi p Uae � kri aim. AwLot Ia ( )Yes (rllvoWW �g owiphr 7W, NOW TheUadet kwdheteA*Pette se Dowd - ` t�ae��t�Salmi Zasis(g tk a a�aikav thep[�ecttobecdasper��sst>ds3kd:astfieofsaedZoai�sBy-Laascwefciimrolve g oe9 4 to t6eUada�elzs�fmay be dci�t &VOlatial from the ism mdpo a oftheZw*Or&ac& R vF 1 • 't _ - -__ _ _ `ate x111 _ - r '. ♦. - ' - - u-e. - ` A _ z .77 -_ _ _-777 71' - - f 77 1 77T.=7 " - fir AV if 77 017-7, iT cr : m gal nr � $ g petitic 1' regulati��mPip with all city and cedes and 2. A be shic*a&ered to. Salem Fine Deparunm rdative to anoke and fue safety Ped6oneristooblin 3 jurisdiction'mci oval fiom aay City Board cr Core having Idistaaical o. �t limited tO'the Planning Board and the Balani 4. Iano evew shall the real estate on R-2 consulting business haveaama�effi with the T disttid in which it is located thsahas bees the case ��Y Ownedbusiness and operated by Christine McCleam.)(Stndi° 107 and S• The Pedfioaer shall be limited to the office estate use far a ncn-harsh,real hunted 10 the�conditions pertoor ofthe site only. , and such business shall be6. The real e� usium � OctivitY Of any shall not ihhclnde anYreiml or tial sales office space where,those Prises The Premises shall only be�a s the Office duties. Anmoe"p Wft customers or c�npedmmtheir p limiting thegmdr�ofthe �shall o�off-site. Without Wises �there shall be no advertisingPosted on tt 7. ram shall WW be wy more thart )NVk afft�with Vmduding the business'owner�s33rsonurrurbM includeman site els of wltever 44 or my other The hours Of 8 P� (and on will be limited to Mondal, Fes,from 8:30 a.m.to 6:30 is the mchrde belie At no time shall the btu result veex ve wise.,�dential Natoric�' ( )as a man,litter,ordemands an P in the 9. This Special Permit will . moa of the ��the irist to occur ofthe aspiration or>> (Shnclaff Developer Sohmions 3'Majaof 0"' of same,or the violation ofany ofthe the change amply for a new pconditions ofNs �oCcuPYthis space is required t t Z t John H. Carr, Jr., Esq. 9 North Street Salem, MA 01970 .RECEIVE® Phone: 978-807-3264 INSPECTIONAL SERVICES : Fax: 978-825-0068 1914 JUN 30 P 12 51 June 30, 2014 By Hand Thomas St. Pierre, Salem Building Inspector Salem City Hall Annex 120 Washington Street, 3'd floor Salem, MA 01970 RE: Jane Arlander, et al. v. Rodney Sinclair, et al. Essex Superior Court Civil Action No. 2014-1050B Dear Mr. St. Pierre: I am herewith enclosing courtesy copies of the following in connection with the above- entitled action which I filed by hand with Essex Superior Court, and the Salem City Clerk, both on Friday, June 27, 2014: 1. My cover letter to the Civil Clerk of the Essex Superior Court, dated June 27, 2014, bearing the Court's June 27, 2014 date-stamp thereon; 2. Complaint Pursuant To M.G.L. Chapter 40A, Section 17 Appealing The June 10,2014 Decision Of The City Of Salem, Massachusetts Board Of Appeal Granting A Special Permit To Rodney Sinclair Concerning 107 Federal Street, Salem, Massachusetts, dated June 27, 2014, consisting of 10 pages, plus Exhibits A-D inclusive, also bearing the Court's June 27, 2014 date-stamp thereon; 3. My cover letter to the Salem City Clerk, dated June 27, 2014, which was filed with the Salem City Clerk at 11:32 a.m. on June 27, 2014, which cover letter bears the June 27, 2014 date-stamp of the City Clerk acknowledging same; 4. Single-page Notice To Salem City Clerk Of Complaint Pursuant To MG.L. Chapter 40A, Section 17 Appealing The June 10, 2014 Decision Of The City Of Salem, Massachusetts Board Of Appeal Granting A Special Permit At 107 Federal Street,Salem, Massachusetts, dated June 27, 2014, also bearing the 11:32 a.m. June 27, 2014 date-stamp of the Salem City Clerk. I had intended to hand-deliver the foregoing courtesy copes to you and Beth Rennard immediately after filing my Notice To the Salem City Clerk and attached copy of the Complaint last Friday, but I was already overdue for a meeting outside of Salem, so left both for hand-delivery today. Would you or someone from your office kindly acknowledge receipt of the foregoing by date-stamping or signing/dating the enclosed copy of this cover letter. Thank you for your attention to the foregoing. cry truly rs, John H. Carr, J . Enc. Cc. Plaintiffs-cover letter onl INSPECTIONAL SERVICES. : John H. Carr, Jr., Esq. 9 North Street 2014 JUN 21 A 1.1: 32 101,4, JU..N 30... R 0 31 ` . Salem, MA 01970 Phone: 978-807-3264 FILE # Fax: 978-825-0068 CITY CLERK,SALEM, MASS June 27,2014 By Hand Salem City Clerk City Hall 93 Washington Street Salem, MA 01970 !::e: Jane Arlander et al. v. Rodney Sinclair, et al. Dear Madam Clerk: Enclosed please find Notice To Salem City Clerk Of Complaint Pursuant To M.G.L. Chapter 40,4, Section 17 Appealing The June 10, 2014 Decision Of The City Of Salem, Massachusetts Board of Appeal Granting A Special Permit To Rodney Sinclair Concerning 107 Federal Street, Salem, Massachusetts. Would you or someone from your office kindly date-stamp and file same, and also acknowledge receipt of the foregoing by date-stamping the enclosed copy of this letter and return same with our messenger. Thank you in advance for your attention to the foregoing. Very truly yours, John H. Carr, Jr. Enc. cc. City Solicitor Elizabeth Rennard, Esq.—By Hand Iver. Rodney Sinclair Plaintiffs-By Hand COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT u CIVIL ACTION NO: 1 —to SD 13 JANE ARLANDER, CAROL CARR, DONALD ) GILLIGAN, DARROW LEBOVICI, and REGINA ) MANISCALCO, ) PLAINTIFFS ) n - V. ) < _ RODNEY SINCLAIR, and REBECCA CURRAN, ) T N RICHARD DIONNE, MIKE DUFFY, ANNIE HARRIS, ) r THOMAS WATKINS, PETER A. COPELAS, and JAMES ) D TSITSINOS, BEING THE REGULAR AND FIRST AND ) ALTERNATE MEMBERS OF THE ZONING BOARD OF 7iw APPEAL OF THE CITY OF SALEM, MASSACHUSETTS, ) w DEFENDANTS ) NOTICE TO SALEM CITY CLERK OF COMPLAINT PURSUANT TO M.G.L. CHAPTER 40A, SECTION 17 APPEALING THE JUNE 10,2010 DECISION OF THE CITY OF SALEM,MASSACHUSETTS BOARD OF APPEAL GRANTING A SPECIAL PERMIT AT 107 FEDERAL STREET, SALEM,MASSACHUSETTS I, John H. Carr, Jr., attorney for the Plaintiffs in the above-entitled action, hereby give notice to the City Clerk of the City of Salem, Massachusetts and to the Salem Zoning Board of Appeals that said Plaintiffs have filed a civil Complaint with the Essex Superior Court appealing the June 10, 2014 Decision of the City of Salem, Massachusetts Board of Appeals (hereinafter"Salem ZBA")granting a Special Permit to Rodney Sinclair to allow the operation of a non-conforming real estate consulting office at 107 Federal Street, Salem, Massachusetts 01970, which property is located in a two-family (R-2) residential zoning district. Said June 10, 2014 Salem ZBA Decision was filed with the office of the Salem City Clerk on June 10, 2014. A copy of said Complaint filed as Essex Superior Court Civil Action No. ��— 4�E) on June 27, 2014 is attached hereto. Respectfully submitted, Jane Arlander, et al, By their attorney, June 27, 2014 John H. Carr, Jr., Esq. 9 North Street Salem, MA 01970 978-807-3264 BBO# 075281 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO: / 4— JANE AREANDER, CAROL CARR, DONALD ) CILLI ^DARROW LEBOVICI, and REGINA ) MANISCALCO, ) PLAINTIFFS ) V. �Oq F ��;^ KFC k6k6 V RODNEY SINCLAIR, and REBECCA CURRAN, ) O�NTI OF 0T RICHARD DIONNE,MIKE DUFFY, ANNIE HARRIS, ) J�IV 2 7FssEk THOMAS WATKINS, PETER A. COPELAS, and JAMES ) 2014 TSiTSINOS,BEING THE REGULAR AND FIRST AND ) ALTERNATE MEMBERS OF THE ZONING BOARD OF ) �F APPEAL OF THE CITY OF SALEM,MASSACHUSETTS, ) �R i DEFENDANTS ) COMPLAINT PURSUANT TO M.G.L. CHAPTER 40A, SECTION 17 APPEALING THE JUNE 10,2014 DECISION OF THE CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL GRANTING A SPECIAL PERMIT TOR ODNEY SINCLAIR CONCERNING 107 FEDERAL STREET, SALEM, MASSACHUSETTS This is an appeal from a Decision of the City of Salem, Massachusetts Board of Appeal hereinafter"ZBA"or"Salem ZBA"or`Board"), dated June 10, 2014, and filed with the Salem City clerk at 1:30 p.m. on June 10, 2014, granting Rodney Sinclair a Special Permit to allow the operation o`a non-conforming real estate consulting office at the first floor of 107 Federal Street, Salem,Massachusetts,which property is located in a two-family(R-2)residential zoning district, on the grounds that said ZBA Decision was/is arbitrary, capricious, unreasonable,violated due process, exceeded the Board's authority, was based on legally and factually untenable grounds, and was wrong as a matter of law. A certified copy of said June 10, 2014 Decision is attached hereto as Exhibit A. PARTIES Plaintiffs 1. Plaintiff Jane Arlander resides at 93 Federal Street, Salem, Massachusetts 01970, which is within the 300 foot notice requirement of the Salem Zoning Ordinance. 2. Plaintiff Carol Carr resides at 7 River Street, Salem, Massachusetts 01970, which is within the 300 foot notice requirement of the Salem Zoning Ordinance, and is a co-owner of said property. 3. Plaintiff Donald Gilligan resides at 2 Andover Street, Salem, Massachusetts 01970, which is within the 300 foot notice requirement of the Salem Zoning Ordinance, and is a co-owner of said property with his wife, Plaintiff Regina Maniscalco. 4. Plaintiff Darrow Lebovici resides at 122 Federal Street, Salem, Massachusetts 01970, which is within the 300 foot notice requirement of the Salem Zoning Ordinance, and is a co-owner of said property. 5. Plaintiff Regina Maniscalco resides at 2 Andover Street, Salem, Massachusetts 01970, which is within the 300 foot notice requirement of the Salem Zoning Ordinance, and is a co-owner of said property with her husband, Plaintiff Donald Gilligan. Defendants 6. Defendant Rodney Sinclair(hereinafter"Mr. Sinclair") who listed his address as "107 Federal Street" on his April 30, 2014 Petition for the special permit is the Petitioner and Beneficiary of the June 10, 2014 Decision of the Salem ZBA being appealed. 7. Defendant Rebecca Curran,who resides at 14 Clifton Avenue, Salem, Massachusetts 019.70, is a regular member and Chair of the Salem ZBA who did not participate in the Ma:-21, 2014 vote of the Salem ZBA on Mr. Sinclair's Petition. 8. Defendant Richard Dionne, who resides at 23 Gardner Street, apartment 1, Salem, Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Special Permit at the May 21, 2014 hearing of the Salem ZBA on Mr. Sinclair's Petition. 9. Defendant Mike Duffy, also believed to be known as Michael Duffy, who resides at 1 Warren Court, Salem, Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Special Permit at the May 21, 2014 hearing of the Salem ZBA on Mr. Sinclair's Petition. 10. Defendant Annie Harris, who resides at 28 Chestnut Street, Salem, Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Special Permit and was the acting Chair at the May 21, 2014 hearing of the Salem ZBA on Mr. Sinclair's Petition. 11. Defendant Thomas Watkins, who resides at 24 Surrey Road, Salem,Massachusetts 01970, is a regular member of the Salem ZBA, who voted to grant said Special Permit at the May 21, 2014 hearing of the Salem ZBA on Mr. Sinclair's Petition. - 2 - 12. Defendant Peter A. Copelas, who resides at 57 Buffum, Salem, Massachusetts 01970, is an alternate member of the Salem ZBA, who voted to grant said Special Permit at the May 21, 2014 hearing of the Salem ZBA on Mr. Sinclair's Petition. 13. Defendant James Tsitsinos, who resides at 6C Wharf Street, Salem, Massachusetts 0100, is an alternate member of the Salem ZBA who did not participate in the May 21, 2014 vote of the Salem ZBA on Mr. Sinclair's Petition. 14. Plaintiffs Jane Arlander, Carol Carr, Donald Gilligan, Regina Maniscalco, and Darrow Lebovici have standing to bring this action, as all are substantially aggrieved by the June 10, 2014 Decision of the Salem ZBA granting said Special Permit. JURISDICTION 15. This Court has jurisdiction over this matter pursuant to Section 17 of Chapter 40A of the Massachusetts General Laws. 16. This case is timely, as it has been filed within twenty (20) days from when the June 10, 2014 Decision of the Salem ZBA was filed with the Salem City Clerk. PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS 17. 107 Federal Street, Salem, Massachusetts is a 3-story Victorian structure with a Mansard roof which is located in a two-family (R-2)residential zoning district. 18. Said property is also located in both the National Register of Historic Places and in the so-called McIntire Historic District adopted by the Salem City Council pursuant to Chapter 40C of the Massachusetts General Laws. 19. Said property consists of three condominium units, one on each of the building's three floors. 20. There are three off-street parking spaces at the property, one for each of the units. 21. The second and third floor condominiums are residential condominiums. 22. The use of the first floor unit is what is under dispute in this action.. 23. By Decision dated August 17, 2006 (hereinafter"August 17, 2006 Decision"), which was entered in the office of the Salem City Clerk on September 11,2006,the owner of the first floor condominium at 107 Federal Street, Salem, Massachusetts, Christine McCleam, obtained a Special Permit"to allow for a graphic design business and art gallery..." A copy of said August 17, 2006 Decision is attached hereto as Exhibit B. 24. Chiistine McClearn and her husband, Keith A. McClearn, are the current owners of the first floor condominium at 107 Federal Street, Salem, Massachusetts. - 3 - 25. Defendant Rodney Sinclair is a tenant of the McCleams and currently occupies their first floor condominium at 107 Federal Street, Salem, Massachusetts. 26 Among the explicit findings in the August 17, 2006 Decision are the following: 5. The petitioner will only utilize the first floor of the property for the graphic design business. 6. The hours of operation of the graphic design business will be Monday-Friday during regular business hours, and the art gallery will operate during the same business hours with the only exception being an occasional Saturday or Sunday appointment as needed and an occasional evening gallery reception for artists. 7. Parking for the use will be accommodated by the existing on-street parking, or the single off-street parking space at the site. 8. The graphic design business shall function on an appointment only basis and shall not function as retail space. 27. Among the explicit conditions in the August 17, 2006 Decision are the following: 4. The petitioner shall operate the graphic design business on the first floor of the site only. 5. The art gallery shall be limited to showing paintings and photographs displayed on the walls and shall not include the display or sale of crafts,jewelry or other art-craft objects. 6. There shall be only three (3) employees on site (including the business owners) at any one time for the operation of the graphic design business. 28. In the last(nearly) eight years the first floor condominium has rarely, if ever, functioned as an art gallery or graphic design studio, and said space has largely been devoid of any activity whatsoever during said period. 29. Defendant Rodney Sinclair filed his within handwritten Petition for Special Permit on or about April 30, 2014. A copy of said Petition is attached hereto as Exhibit C. 30. In said Petition Mr. Sinclair represented that the"Current Property Use" is "mixed use residential&retail'when in fact the property was not operating as a retail use and said retail use was specifically prohibited by Condition No. 8 in the August 17, 2006 Decision —see paragraph 24(8) above. -4 - 31. Mr. Sinclair also attached a single-page "Statement of Grounds" in support of his Petition, which included the following sentences: Sinclair Development Solutions (SDS) is proposing to open a real estate consulting office at 107 Federal Street, unit 1. I began SDS in 2009 after working for the Boston Redevelopment Authority for almost 10 years. At the BRA I was in charge of overseeing the permit applications for large scale development projects in the City of Boston... I began to notice there was no one helping these developers and so I saw an opportunity to take my skill-sets and turn them into a business. So in 2009 I made the leap and began SDS, which specializes in real estate development permits. Working out of my home for the next 4 years I contracted over 40 projects in the Greater Boston area. The projects ranged from basement renovations to 80 unit residential projects... Since obtaining my real estate sales person license in 20111 have been able to combine my permitting project management with project creation and buyer representation into a full service consulting shop that helps developers find the property, permit their project, and sell the units on the back end... My business is not focused on selling and buying real estate. We specialize in giving people advice, home owners and large scale developers alike... I plan on holding educational courses for people in the neighborhood... My business is supported by large scale commercial deals that I am engaged in... Again, I am licensed as a Sales Person, but my primary business comes from large scale developers, not local homeowners looking to sell or rent their property. I share this business with my wife, who will be working with me on a regularly[sic] basis. I do have an intern who will be in and out of the office, but he lives local and will be traveling on foot or by bicycle. We have one parking space deeded to us so we will have a minimal impact on the parking situation. Emphasis added. 32. After some initial discussion among members of the Board, during which it became clear that none of the ZBA members had been given copies of the August 17, 2006 Decision by the ZBA staff or were aware of what the particulars of said pre-existing Special Permit Decision were, the May 21, 2014 hearing began by Mr. Sinclair speaking in favor of his Petition followed by a ZBA staff person reading into the record three lengthy letters, one from Joel Caron, one from Plaintiff Darrow Lebovici, and one from Plaintiff Jane Arlander, all of which were in solid opposition to Mr. Sinclair's Petition. - 5 - 33. As part of his oral presentation Mr. Sinclair submitted a single typewritten page containing 9 proposed special permit conditions drafted by John H. Carr, Jr. of 7 River Street, Salem, MA 01970. A copy of said proposed 9 conditions is attached hereto as Exhibit D. At the time Mr. Carr was only representing himself and acting as an individual. Mr. Sinclair said he was agreeable to each of said conditions. 34. Mr. Carr, who is an attorney with offices at 9 North Street, Salem, Massachusetts,has since,been retained by the Plaintiffs to represent them in this action. 35. Following the reading of the three opposition letters into the record,the hearing was then thrown open to the public. 36. Mr.Carr distributed copies of his 9 proposed conditions and copies of the August 17, 2006 Decision concerning 107 Federal Street to each member of the Board, and also said that he was conditionally in favor of Mr. Sinclair's Petition so long as the substance of said conditions were incorporated into the ZBA Decision; otherwise he would appeal any decision not containing same. 37. Mr. Carr's sentiments were echoed by his wife, Plaintiff Carol Carr, and by Barbara Cleary of 104 Federal Street, Salem, Massachusetts. Ms. Cleary is traveling out-of-state and could not be contacted prior to the filing of this Complaint. 38. The Board then proceeded to modify Mr. Carr's conditions, and ultimately approved Mr. Sinclair's Petition unanimously. 39. As to each of the following Counts,the Plaintiffs reaffirm, re-allege, and incorporate all ofth%prior allegations contained in paragraphs 1-36 inclusive above. ARGUMENT COUNTI The pre-existing nonconforming uses have been discontinued for more than two years and thus are extinguished. 40. In the last (nearly) eight years the first floor condominium at 107 Federal Street, Salem, Massachusetts,has rarely, if ever, functioned as an art gallery or graphic design studio, and said space has largely been devoid of any activity whatsoever during said period. 41. As such,the nonconforming art gallery use and nonconforming graphic design business uses described in the August 17, 2006 Decision of the Salem ZBA became extinguished after they were effectively discontinued for a period of two years or longer, at which time the property reverted to a two-family. - 6 - 42. Indeed, even the Minutes of the May 21, 2014 ZBA hearing reflect that"The space has been vacant for the past couple of years." 43. Thus, Sections 9.4.2 and 3.3.2 of the Salem Zoning Ordinance, which were the basis the Board relied on in granting Mr. Sinclair his requested zoning relief, were inapplicable as a matter of law. 44. For the foregoing reasons alone,the Board exceeded its authority in granting said Special Permit, and said June 10, 2014 Decision of the Salem ZBA should be annulled in its entirety. COUNT II The Special Permit was granted in violation of Article 3.3.2 of the Salem Zoning Ordinance. 45. Article 3.3.2 of the Salem Zoning Ordinance, entitled"Nonconforming Uses,"provides the following in relevant part: The Board of Appeals may award a special permit to change a nonconforming use in accordance with this section only if it determines that such change or extension shall not be substantially more detrimental than the existing nonconforming use to the neighborhood. The following types of changes to non conforming uses may be considered by the Board of Appeals...2. Change from one nonconforming use to another, less detrimental, nonconforming use. Emphasis added. 46. Even if the pre-existing nonconforming uses at 107 Federal Street have not been discontinued for a period of two years or longer, the new nonconforming use approved by the ZBA at the May 21, 2014 hearing on Mr. Sinclair's Petition involve greater nonconforming activity than that which has been in effect since August 17, 2006. 47. The Plaintiffs are substantially aggrieved by the June 10, 2014 ZBA Decision. 48. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit, and said June 10, 2014 Decision of the Salem ZBA should be annulled in its entirety. 49. In the single-page "Statement of Grounds" attached to his Petition For Special Permit, Mr. Sinclair stated (in relevant part) that"As we all know, there are a number of businesses on Federal Street,the most famous one being the Peabody Essex Museum." 50. In point of fact, Federal Street between North and Boston Streets, which is a distance of approximately a quarter mile and which is where 107 Federal Street is located, is entirely - 7 - residential save for the Pierce Nichols House owned by the Peabody Essex Museum, which is a house museum, and St. James's Church. 51. Both properties are not businesses within the meaning of the Salem Zoning Ordinance, and both uses exist at said locations as a matter of richt pursuant to said Ordinance. 52. For the foregoing reasons alone,the Board exceeded its authority in granting said Special Perritit, and said June 10, 2014 Decision of the Salem ZBA should be annulled in its entirety. COUNT III The Special Permit was granted in violation of Article 9.4.2 of the Salem Zoning Ordinance. 53. Section 9.4.2 of the Salem Zoning Ordinance, entitled"Criteria"under"SPECIAL PERMITS," provides the following in relevant part: Special Permits shall be granted by the Special Permit Granting Authority, unless otherwise specified herein, only upon its written determination that the adverse effects of the proposed use will not outweigh its beneficial impacts to the City or the neighborhood,in view of the particular characteristics of the site, and of the proposal in relation to that site. In addition to any specific factors that may be set forth in this Ordinance, the consideration shall include consideration of each of the following: 1. Community needs which are served by the proposal; 4. Neighborhood character; 6. Potential economic and fiscal impact, including impact on City Services,tax base, and employment. Emphasis added. 54. The June 10, 2014 Decision does not contain the required written determination that "the adverse effects of the proposed use will not outweigh its beneficial impacts to the City or the neighborhood, in view of the particular characteristics of the site, and of the proposal in relation to that site. 55. In point of fact, there are no such community needs which are served by Mr. Sinclair's proposal;the only needs being served are those of Mr. Sinclair. `56. The proposal likewise does not fit the historic and uniformly residential character of the neighborhood. - 8 - 57. The potential economic and fiscal impact, including impact on City Services,tax base, and employment does not depend on Mr. Sinclair's business being located at 107 Federal Street. 58. In point of fact there is plenty of office space available in areas that are already zoned for office use in Salem, including in downtown Salem without having to adversely effect the historic Federal Street neighborhood or, for that matter, restrict Mr. Sinclair in the openition of his business. 59. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit, and said June 10,2014 Decision of the Salem ZBA should be annulled in its entirety. COUNT IV Mr. Sinclair has already begun violating the conditions of the June 10,2014 Decision, even before the expiration of the appeal period. 60. Condition No. 1 in the June 10, 2014 Decision provides that"The Petitioner shall comply with all city and state statutes, ordinances,codes and regulations. Emphasis added. 61. Mr. Sinclair has violated said condition by parking along the sidewalk in front of 107 Federal Street, notwithstanding that he has a dedicated off-street parking space at said address. Parking is not allowed on that side of the street in that location. 62. In addition, Mr. Sinclair has recently announced that he intends to have an opening celebration at 107 Federal Street, at which event the entire Salem Chamber of Commerce will be invited. 63. Both activities violate said condition. 64. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit, and said June 10, 2014 Decision of the Salem ZBA should be annulled in its entirety. COUNT V The June 10,2014 Decision of the Salem ZBA violates the explicit Purposes of the Salem Zoning Ordinance. - 9 - 65. Article 1.1 of the Salem Zoning Ordinance, entitled "Purpose," provides the following in relevant part: For the purpose of promoting the health, safety, convenience, morals or welfare of the inhabitants of Salem, the zoning regulations and restrictions of this ordinance, ordained in accord with the provisions of Chapter 40A of the General Laws...are designed among other purposes to lessen congestion in the streets,...to prevent overcrowding of land,...to avoid undue concentration of population,...to facilitate the adequate provision of transportation..., to conserve the value of land and buildings, to encourage the most appropriate use of land throughout the City; and to preserve and increase its amenities,...to prevent ... community blight... 66. Among many of its other problems, as alleged above, the June 10, 2014 Decision of the Salem ZBA violates several of the above express Purposes of the Salem Zoning Ordinance. 67. For the foregoing reasons alone, the Board exceeded its authority in granting said Special Permit, and said June 10, 2014 Decision of the Salem ZBA should be annulled in its entirety. RELIEF SOUGHT The Plaintiffs respectfully request that this Court: a. enter a Judgment in their favor annulling in full the June 10, 2014 Decision of the Salem Zoning Board of Appeals; b. award the Plaintiffs cost and reasonable attorneys fees in connection with their proecution of this appeal; and c. grant such other relief as is just and expedient. Respectfully submitted, Jane Arlander, et al., By their attorney, June 27, 2014 John H. Carr, Jr.,Esq. 9 North Street Salem, MA 01970 BBO#075281 Phone: (978) 807-3264. Fax: (978) 825-0068 - 10 - /1 �r 5 II • q p, - �- w Y 1 1 I .Wq' 1t • � 1 1 1 t 1 - t1 �q • I a 1.. 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I • I • I•`• 1 .r 111 /a. •a-1 i i a a 1 • ' l• 1 • I I 1 � • ! i I I •111 1 • 1111 1 Y- •�a • � t • 1 • r • • 1 • r • a."a •( r r • 1 1 F,- 1• - .• I • ` [\ r It - 1 • •In iB 11 i. 1 • r• t •IIp(- a • 11• • • • 111[ • • It[ t Cftyo?Ialem Board of Appeals June 10,2014 Project: 107 Federal Street Page 2 of 2 On the basis of the above statements of facts and findings,the Salem Board of Appeals voted five (5)in favor (Mr. Watkins, Ms. Harris, Mr. Dionne, Mr. Copelas, and Mr. Duffy in favor) and none (0), to grant the requested Special Permit to allow the operation of a real estate consulting office in a building currently in a nonconforming use subject to the following terms,conditions, and safeguards: 1. The Petitioner shall comply with all city and state statutes, ordinances,codes and regulations. 2. All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner 3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 4. A Certificate of Occupancy is to be obtained. 5. A Certificate of Inspection is to be obtained. 6. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including,but not limited to,the Planning Board. 7. The petitioner shall be limited to the office use for a non-retail real estate consulting businese only, subject to the other conditions of this Special Permit, and such business shall be limited to the first floor of the site only. 8. There shall be no advertisements posted on the premises. 9. The real estate business shall not include any retail or commercial sales or real estate brokerage sales activity of any kind on the premises. 10. There shall never be any more than three (3) people affiliated with the business on-site at any one time. 11. The hours of operation will be limited to Monday to Friday from 10:00am to 7:00pm and shall not include holidays. 12. This Special Permit shall expire with this business (Sinclair Development Solutions) and any other business seeking to occupy this space is required to apply for a new Special Permit. ed � uveal A_4tti /z Annie Harris,Acting Chair Board of Appeals A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK Appeal from this deasion,if any,sball be made pursuant to Section 17 of the Massacbusec s Genera!Lams Chapter 40A, and shall be filee:.-thin 20 days of filing of this dedaon in the office of the City Clerk Pursuant to the Massachusetts General Laws Chapter 40A,Section 11, the Varimue or Special Pernrit granted herein shall not take effect until a copy of the deacon beating The certifttau of the City Clerk has been filed with the Essex South Registry ofDeeds. .. 1 ,c. i'CY OF SAt.EM� MAS.'ACtIUSETTs C1 ERK SALEM.-MA . 4 EM ` z- C BOARD OF taoOft � � '7 .TaXpmo"C 978.7655-8589 t t =R `3e a FAX:878.76O8846 1"Y00 17,206 a P °fesflaiY d aliow s gt +�P R 2 Di�c� speci `'•Par >tx�at107 Federd scream, at City of SAM 70ft Board m AUPSI 14 2M6 PmumltaoM�s �a1 Law«•44fA. II,the fdto E6za�Debd°. Z Stem,ARM HIMSO The �°eSpectand at at 107 . Srw Sakmm��YgdCdP (ii:2) •� o[dteetidGaxp IS ° � mabes the fonovft bowing,and am*mono=viewof dw Petition of hm 1. The proPeatY at 107 Pedasl Strt ffi within R-2 tx t 0 2 !Y w' maw use as as wt g�a7- tb 3. aww do W&&dp business use, mr the sl- 4. The sets was Pte`UW as a florist sbapr app use. utilize the floor of p�Y for the dt�design,S. The petites will�Y k business. 6. The boom of opgCom of the Smoc"8a busimeSS will bs A6o Y aft btu andthe 7t wilt businessho�as with the only etch being W o SAY mselociffy as waded and an oaasiOud ,..M f�e une wffi be a000 by*e enc mS o B'� the 7. F -ofteaP e Sir. t f' functiou anappaintesomady basis and shall & MO aOt�NaCtLDn�a lam sP''�" _ , waimbers _ who in fava�afdm PCO 9 Move wew ofd an-dw beds c(dwsbawfindivP Off' M��eaaerit� of bat am mho,the P B°a[daf ApQe�s concludes as fob -1. ,usrequest�$ pmwtheoseofagrc design business asci at galltay at 107 Federal Swat does not cmsdv3w a m do public good- 2. Mwasqpested.4acidpenutdoes RMudWcr$WxwuAydwWftfiM the itttft agmpose of the zaaft OfffnIMOM 3. The petiriosds proposal vnu be cownuess a P am in cood�ioa atiof the above.the Salem Board of Appeals voted,ff tg3 in favar(Sty. Hwds,Pinta,Debsld,Bim)lead 909(0)opposed.to Drastdw mqwSt for a Special pWt, to'thekUowtagUUM and 1. peddotter shalt comply with an citysad state stattaes,cranneaga,cadet and e' 2 AR wqdMaemaof the Sakm File Department rehmvC to smoke sad fire sdetY shalt be Sit Wy adhesed ux 3 phis to obtain apptovat ft m any City Board orCaaomissM bavh* jarisdicxia0mcb&&but vat limited to,the pbmOW9 BOWIL 4. Pbepeoatbelhafthe 5. The art gallery shati be fimited€a sad �wdwwagsaadAMminclude thedisplay orsaICofcmRs,J yarca�� aR-watt typeob� 6. raw shaft beady dM(3)emplWYM os site(=CbKftIhO aa9�aesiet�scfiestlaeapaa�ofiheg � 4 Y a RR� �rA t AR 04 ee CITY OF SALEI , � BOARD OF APPEAIS .MR 30 P '0- 00 Aax 1.0 WAiGPDN g;gFSI, Fi gp,L8t�3,3wi� Pqw g�Ty CEEB.SALEM.HAS. Slaw�� s . pie:YX aq,, 8S 1 p.=q 3Sa4�a JAU 13eVa \ ii 13 Amon rn�Il�Ct ` r i:oTb� I as Q x °fes d*i��m22f9W r� CAIS +� Forms08MI at Kgsas ftaa ofthe2oo�3 )Vg)� s�8ecuon -yano• y4j!?sfaP st,)., cI vj•9 yi9 :: V J-tl �Gw�tdt ( )ASPP°°agLt bdm* (descr ( )Ga `�peon$fareassus �iowor hwsm8. obdoari: AteLot ( )Yxs LlnrestFraD �Se t�- aeaadal R mgt dl theof ess owmant of sae3Zaoiog mvowe eUndawknedlimewpefto Ise dtobeccgdmd0AWPff bob*I'tbougaisipamizadawI at yet a . �� �peofBeeZaom€ ' _ 1 1 1 n_ na. 74 .�I.Z . 7L 1 _ 1 ? 771 - - _ - ♦' �� L� I lot - l • I , ni> r7FI :Y. N 419 40 40 . 51 sr et Its �. O l e I. Petitioner shall amply with all city and state statutes,ordiamces,codes and 2. All naqu>ire of the Salem Fire Depa trent relative to smoke and fire safety shall be strictly adhesed to 3. Petitioner is to obtain approval from any City Board or Commission Laving jurisdiction including,but not limited to,the Planning Board and the Salem historical Commission 4. In no event shall the real estate consulting business have a more deleterious effect on the R-2 residential zoning district in which it is located than has been the case with the p t"Mstmg non-conforming graphic design b (Studio 107 and ancillary art gallery owned and operated by Christine McCleam.) 4 5. The petitioner shall be limited to the office use for a non-retail,teal estate consulting busmess only,subject to the other conditions of this Special Permit, and such business shall be limited to the fast fioor of the site only. � 6. The real emote consulting busmess shall not include any retail or commercial sales activity of any kind on the Mises. The premises shall only be used as the; office space where those affiliated with the busmess can pe& m their private office duties. All meetings with customers or clients shall occur off-ate. Without limiting the generality of the foregoing there shall be no advertising posted on the Premises. } 7. There shall never be any more than(3)people affiliated with the business on site (Includmg the bush2ess owner). This 3-person limitation mcludes(without limitation)employees,intems,paraprofessionals,support sU$or say other individuals of whatever demon. 8. The Louis of operation will be limited to Monday to Friday from 8:30 am to 6.00 pm.(and stall not include holidays). At no time shall the basis became a nuisance to the reseal Listoac neighborhood,including(w$xyd limitation)as aresult of excessive noise,Ions of operation,li,or demos on pwft in the 9. This Special Permit will expire upon the first to occur of the expiration or relocation of the buss(Sinclair Developawat Solutions the change of the mrjority of ownership of same,or the violation of any of the dans ofWs Special Permit. Any future business sem to occupy this space is repaired to apply for a new Special Permit. J 'RECEIVED� INSPECTIONAL SERVICES John H. Carr, Jr., Esq. 9 North Street YlI� AN 30 P 12 51 Salem, MA 01970 Phone: 978-807-3264 Fax: 978-825-0068 June 30, 2014 By Hand City Solicitor Elizabeth Rennard, Esq. Salem City Hall 93 Washington Street Salem, MA 01970 RE: Jane Arlander, et al. v. Rodney Sinclair, et al. Essex Superior Court Civil Action No. 2014-1050B Dear Attorney Rennard: I am herewith enclosing courtesy copies of the following in connection with the above- entitled action which I filed by hand with Essex Superior Court, and the Salem City Clerk, both on Friday, June 27, 2014: 1. My cover letter to the Civil Clerk of the Essex Superior Court, dated June 27, 2014, bearing the Court's June 27, 2014 date-stamp thereon; 2. Complaint Pursuant To M.G.L. Chapter 40A, Section 17Appealing The June 10,2014 Decision Of The City Of Salem, Massachusetts Board Of Appeal Granting A Special Permit To Rodney Sinclair Concerning 107 Federal Street, Salem, Massachusetts, dated June 27, 2014, consisting of 10 pages, plus Exhibits A-D inclusive, also bearing the Court's June 27, 2014 date-stamp thereon; 3. My cover letter to the Salem City Clerk, dated June 27, 2014, which was filed with the Salem City Clerk at 11:32 a.m. on June 27, 2014, which cover letter bears the June 27, 2014 date-stamp of the City Clerk acknowledging same; 4. Single-page Notice To Salem City Clerk Of Complaint Pursuant To MG.L. Chapter 40A, Section 17 Appealing The June 10, 2014 Decision Of The City Of Salem, Massachusetts Board Of Appeal Granting A Special Permit At 107 Federal Street, Salem, Massachusetts, dated June 27, 2014, also bearing the 11:32 a.m. June 27, 2014 date-stamp of the Salem City Clerk. I had intended to hand-deliver the foregoing courtesy copes to you and Tom St. Pierre immediately after filing my Notice To the Salem City Clerk and attached copy of the Complaint last Friday, but I was already overdue for a meeting outside of Salem, so left both for hand-delivery today. Would you or someone from your office kindly acknowledge receipt of the foregoing by date-stamping or signing/dating the enclosed copy of this cover letter. Thank you for your attention to the foregoing. Very truly yours, John H. Carr, Jr. Enc. Cc. Thomas St. Pierre, Salem Building Inspector-By Hand Plaintiffs-cover letter only r f n } CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL 120 WASHINGTON STREET♦SALEM,MASSACHUSE1TS 01970 C a Knarx�Datscot L Tap-978-745-9595 FAx:978-740-9846 m mr' O t June 10, 2014 " U 3 Decision 3 '� City of Salem Board of Appeals n .0 Petition of RODNEY SINCLAIR requesting a special permit per Section 9.4.2 Special Pernuis — Coreas and Seo. 33.2 Noncoafn=z&g Uses of the Salem Zoning Ordinance, to allow the operation of a real estate consulting office in a building curready is a nonconforming use, at the property located at 107 FEDERAL STREET(112 Zoning District). t A public hearing on the above Petition was opened on May 21, 2014 pursuant to N.GZ Ch. 40A, § 11. The hearing was closed on that date with the following Salem Board of Appeals members present Ms. Harris (acting Chair),Mr.Dionne,Mr.Duffy,Mr.Watkins,and Mr. Copelas (Alternate). The Petitioner seeks a Special Permit per Section 9.4.2 Special Pmx&-Criteria and Section 33.2 N==;6ndxg User of the Salem Zoning Ordinance. Statements of fact 1. In the petition date-stamped April 30, 2014, the Petitioner requested a Special Permit to a".aw the Verat:ion of a real estate consulting office in a budding currently in a nonconforming use. -'k. 2. 1,1— Rodney Sinclair,petitioner,presented the petition for the property at 107 Federal Street 3. A daft list of special conditions was submitted to the Board by the applicant This list of conditions was prepared in collaboration with concerned abutters. 4. The req u.Ated rehe� if gtanted,would allow the Petitioner to operate a real estate consulting'i.Jce at the property. 5. Three]ettes in opposition to the petition were submitted to the Board,and were read into the public record at the heating. 6. At the public heating, two abutters expressed their support of the petition contingent on the special conditions discussed at the heating,and a third abutter expressed their support of the petition. The Salem Board of Appeals, after careful consideration of the evidence presented at tate public hearing, and after thorough review of the petitions, including the application narrative and plans, and the Pe. loner's presentation and public testimony, makes the following findings that the proposed pro)ect me&s the provisions of the.City of Salem Zoning Ordinance: Findings I. The proposed nonconforming use is no more detrimental than the previous nonconforming use of *Property. 2. 1- . scope of the proposed use,with the conditions set by the Board,is consistent with the scope of the previous use allowed by Special Permit, and as such, the.proposed use does not constitute a substantial detriment to the public good, it does not nullify or substantially derogate from the intent or purpose of the zoning ordinance. :.r. CltypNalem Board of Appeals June 10,2014 Project: 107 Federal Street Page 2 of 2 On the basis of the above statements of facts and findings, the Salem Board of Appeals voted five (5) in favor (Mr. Watkins, Ms. Harris, Mr. Dionne, Mr. Copelas, and Mr. Duffy in favor) and none (0), to gr<nt the requested Special Permit to allow the operation of a real estate consulting office in a building currently in a nonconforming use subject to the following terms,conditions, and safeguards: 1. The Petitioner shall comply with all city and state statutes, ordinances, codes and regulations. 2. All construction shall be done as per the plans and dimensions submitted to and approved by the Building Commissioner 3. 10 requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 4. A Certificate of Occupancy is to be obtained. 5. A Certificate of Inspection is to be obtained. 6. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to, the Planning Board. 7. The petitioner shall be limited to the office use for a non-retail real estate consulting business only, subject to the other conditions of this Special Permit, and such business shall be limited to the first floor of the site only. S. There shall be no advertisements posted on the premises. 9. The real estate business shall not include any retail or commercial sales or real estate brokerage sales activity of any kind on the premises. 10. There shall never be any more than three (3) people affiliated with the business on-site at any one time. 11. The hours of operation will be limited to Monday to Friday from 10:00am to 7:00pm and shall not include holidays. 12. This Special Permit shall expire with this business (Sinclair Development Solutions) and any other business seeking to occupy this space is required to apply for a new Special Permit. kk /�' Annie Harris,Acting Chair Board of Appeals A COPY OF THIS DECISION HAS BEEN FRED WITH TILE PLANNING BOARD AND THE CITY CLERK. Appeal from thu&crsion,if any, shall be made pursuant to Section 17 of the Mavarhureas General L. y Chapter 40A, and shall be file. .Within 20 days of filing of this decision in the office of the City Clerk. Pursuant to the Massachusetts General Lamy Chapter 40A, Section 11, the Valance or Speaal Permit granted herein shall not take effect until a copy of the deasion bearing the certificate of the Gly Clerk has been fled wth the Essex South Aegut y of Deeds. John H. Carr, Jr., Esq. 9 North Street 2014 JUN 21 A 11 32 Salem, MA 01970 FILE It Phone: 978-807-3264 CITY CLERK, SALIK 11AS53. Fax: 978-825-0068 June 27, 2014 By Hand Salem City Clerk City Hall 93 Washington Street Salem, MA 01970 Re: Jane Arlander et al. v. Rodney Sinclair, et al. Dear Madam Clerk: Enclosed please find Notice To Salem City Clerk Of Complaint Pursuant To M.G.L. Chapter 40A, Section 17 Appealing The June 10, 1014 Decision Of The City Of Salem, Massachusetts Board of Appeal Granting A Special Permit To Rodney Sinclair Concerning 107 Federal Street, Salem, Massachusetts. Would you or someone from your office kindly date-stamp and file same, and also acknowledge receipt of the foregoing by date-stamping the enclosed copy of this letter and return same with our messenger. Thank you in advance for your attention to the = V� tr your ohn H. rr, Jr. Enc. cc. City Solicitor Elizabeth Rennard, Esq.—By nd Mr. Rodney Sinclair- Plaintiffs-By Hand CO n Salem Historical Commission 120 WASHINGTON STREET, SALEM, MASSACHUSETTS 01970 (978) 745-9595 EXT. 311 FAX (978) 740-0404 CERTIFICATE OF APPROPRIATENESS 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 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- 107 Federal Street Name of Record Owner: Christine & Keith McCleam Description of Work Proposed: Paint colors in conjunction with paint colors approved on Certificate of Appropriateness dated 4120106.- Door 120/06:Door color- Black i'letal Optional Accent color (storefront detailing& bands around roof soffit) - Muslin Dated: May 9, 2006 SALEM HIISTORICAL�COO�MMISSION 7 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. XL 1 j V is A Salem Historical Commission ONE SALEM GREEN.SALEM, MASSACHUSEiit S 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 ❑ 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: 107 Federal St. Name of Record Owner: Sun Cha Kim Description of Work Proposed: Paint storefront as follows: Panels below windows to be changed from red to grey (body color); Red trim around windows to be changed to white; Window sash to be black; and Medallions to be white. Relocateflower shop sign from Front Street temporarily until the Commission's meeting of August 2, 1995. Signage portion of application continued to meeting of August 2, 1995 Dated: Id `y/ SALEM HISTORICCAL COMMISSION Bv: L!� 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. Cbc of Salem, 4Hassadjusetts M 36 Vass DECISION ON THE PETITION OF SUN CHA KIM FOR A VARIANCE AT4j07_FEDERAL ST.`„(R-2) A hearing on this petition was held March 16, 1994 with the following Board Members present: Stephen Touchette, V. Chairman; Gary Barrett, Albert Hill and Associate Members Nina Cohen and Arthur Labrecque. 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. Petitioner, owner of the property, is requesting Variances from use and parking to allow former variety store to be converted to a single bedroom apartment in this R-2 district. The Variances which have been requested may be granted upon a finding of the Board that: a. Special conditions and circumstances exist which especially affect the land, building or structure involved and which are not generally affecting other lands, buildings or structures in the same district. b. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship, financial or otherwise, to the petitioner. c. Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent of the district or the purpose of the Ordinance. The Board of Appeal, after careful consideration of the evidence presented at the hearing and after viewing the plans, makes the following findings of fact: 1. There was vigorous neighborhood opposition. 2. No one spoke in favor. 3. The petitioner to failed demonstrate or to meet the burden of proof relative to legal hardship. • DECISION ON THE PETITION OF SUN CHA KIM FOR VARIANCES AT 107 FEDERAL ST. , SALEM page two APR �� 2 36 Ott 0'•, Gt,L`:�,,, i1 ;L55 On the basis of the above findings of fact, and on CITY th@Lgtta9®r4cp ' presented at the hearing, the Board of Appeal concludes as follows: 1. Special conditions do not exist which especially affect the subject property and not the district in general. 2. Literal enforcement of the provisions of the Zoning Ordinance would not involve substantial hardship to the petitioner. 3. The relief requested cannot be granted without substantial detriment to the public good or without nullifying and substantially derogating from the intent of the district or the purpose of the Ordinance. Therefore, the Zoning Board of Appeal voted 2 in favor 3 opposed ( Mr. Touchette, Mr. Labrecque voted in favor, Mr. Hill, Ms. Cohen & Mr. Barrette voted in opposition) to the motion to grant, having failed to garner the required four affirmative votes to pass, the motion is defeated and the petition is denied. VARIANCE DENIED March 16, 1994 1-24 Nina V. Cohen, Associate Member 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 MGL 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 MGL 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 PASSED 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 hey' � -�� �ifg IIf �ttlem, ��tt�s�tt>r1��*gOffg 4' . , _ zzhlitrupertg �e}zrtment oJ�= ? uilDins �i�, e�rarircent �4 Richard T. McIntosh One Salem Green October 26, 1984 T45-OZ13 i To Whom it may concern: The existing 1st floor use at 107 Federal Street, I. E. Grocery Store, is determined to be non-conforming to the current zoning. This use may be continued under the current Zoning Sec VIII E. Richard T. McIntosh Zoning Enforcement RTMCI/jc FILE . 0. COPY �CONBIT gam' CERTIFICATE OCCUPANCY CITY OF SALEM .. � ISs� S 9 SPetmd M:a�b-�.5" ca. SALEM, MASSACHUSETTS 01970 of Salem 8uildin De t. DATE JUNE 13 19 95 PERMIT NO. 270-1995 APPLICANT TF MCCARTHY & SONS ADDRESS 14 DAVIS ST 22 (NO.) (STREET) (CONTR'S LICENSE) CITY BEVERLY STATE MA ZIPCODE 01915 TEL.NO. ALTERATION STORES, MERCANTILE NUMBEROF 0 PERMI770 ( ) STORY DWELLING UNITS (TYPE OF IMPROVEMENT) NO. (PROPOSED USE) AT(LOCATION)t 010.7-FEDERAL--STREETt ZONING (NO) (STREET) DISTRICT R—` BETWEEN AND (CROSS STREET) (CROSS STREET) SUBDIVISION MAP 26 LOT 0531 BLOCK 201 SIE 0002..379 SO FT BUILDING IS TO BE FT.WIDE BY FT.LONG BY FT.IN HEIGHT AND SHALL CONFORM IN CONSTRUCTION TO TYPE USE GROUP BASEMENT WALLS OR FOUNDATION (TYPE) REMARKS: DRYWALL, PAINT WALLS & CEILINGS. INSTALL COUNTERS FOR FLOWER SHOP. J. J. AREA OR@ ,20. IZIL.PERMIT (CUBIC/SQUARE FEET) VOLUME ESTIMATED COST$ 1• G00 FEE $ OWNER KIM/FEDERAL STREET REALTY TRUST BUILDING DEPT. ADDRESS 82 NORTH ST BY J. J. J r.nc ornr '111.1 w1.c 1.1 occur Tn" P,e1.v cTPPPT ei i cv no c.nnue.vno n 11...TTucocic c ITuco Tc-. .o....no oco....1.c1.T... —1.,1..11.. —1 a JOB SITE COPY _ CERTIF��pj�OF OCCUPANCY CITY OF SALEM 1 5 a9�_ SALEM, MASSACHUSETTS 01970 ParnidM C' of Salem Buildin Dept. DATE JUNE 13 19 S� PERMITNO. 270-1995 APPLICANT TF MCCARTHY & SONS ADDRESS 14 DAVIS ST 22 (NO) (STREET) (CONTRS LICENSE) CITY BEVERLY STATE MAZIPCODE 01915 TEL NO. PERMITTO ALTERATION ( ) STORY STORES, MERCANTILE DWEBEROF ITS 0 (TYPE OF IMPROVEMENT) N0. (PROPOSED USE) LLING AT(LOCATION) 0107 FEDERAL STREET DISTRICT NING R- (NO) (STREET) BETWEEN AND (CROSS STREET) (CROSS STREET) SUBDIVISION MAP 26 LOT 0531 BLOCK 201 gg 0002379 SO, FT BUILDING IS TO BE FT.WIDE BV FT,LONG BY FT.IN HEIGHT AND SHALL CONFORM IN CONSTRUCTION TO TYPE USE GROUP BASEMENT WALLS OR FOUNDATION (TYPE) REMARKS: DRYWALL, FAINT WALLS & CEILINGS, INSTALL. COUNTERS FOR FLOWER SHOP. v AREA OR Call for Permit to Occupy PERMIT VOLUME ESTIMATED COST$ J. • 60171 FEE $ 213. 171x' (CUBICISQUARE FEET) OWNER KIM/FEDERAL STREET REAL'.Y TRUST BUILDING DEPT. ADDRESS 82 NORTH. ST By J. J. J THIS PERMIT CONVEYS NO RIGHT TO OCCUPY ANY STREET.ALLEY OR SIDEWALK OR ANY PART THEREOF.EITHER TEMPORARILY OR PERMANENTLY,ENCROACHMENTS ON PUBLIC PROPERTY,NOT SPECIFICALLY PERMITTED UNDER THE BUILDING CODE.MUST BE APPROVED BY THE JURISDICTION,STREET OR ALLEY GRADES AS WELL AS DEPTH AND LOCATION OF PUBLIC SEWERS MAY BE OBTAINED FROM THE DEPARTMENT OF PUBLIC WORKS.THE ISSUANCE OF THIS PERMIT DOES NOT RELEASE THE APPLICANT FROM THE CONDITIONS OF ANY APPLICABLE SUBDIVISION RESTRICTIONS. MINIMUM OF THREE CALL INSPECTIONS APPROVED PLANS MUST BE RETAINED ON JOB AND THIS CARD KEPT WHERE APPLICABLE SEPARATE REQUIRED FOR ALL CONSTRUCTION WORK: POSTED UNTIL FINAL INSPECTION HAS BEEN MADE. WHERE A PERMITS ARE REQUIRED FOR 1.FOUNDATIONS OR FOOTINGS. ELECTRICAL.PLUMBING AND 2.PRIOR TO COVERING STRUCTURAL CERTIFICATE OF OCCUPANCY IS REQUIRED,SUCH BUILDING SHALL MECHANICAL INSTALLATIONS. MEMBERS(READY TO LATH). NOT BE OCCUPIED UNTIL FINAL INSPECTION HAS BEEN MADE. 3.FINAL INSPECTION BEFORE OCCUPANCY. POST THIS CARD SO IT IS VISIBLE FROM STREET BUILDING INSPECTION APPROVALS ING INSPECTION APPROVALS ELECTRICAL INSPECTION APPROVALS BOARD OF HEALTH AS INSPECTION APPROVALS F PT. NSPEQTTNp APPROVALS - �i OTHER CITY ENGINEER 2 V - 2 // J '-V II WORK SHALL NOT PROCEED UNTIL THE PERMIT WILL BECOME NU LL AND VOID IF CONSTRUCTION WORK IS INSPECTIONS INDICATED ON THIS CARD INSPECTOR HAS'PROVED T,-=VARIOUS i NOT STARTED WITHIN SIX MONTHS OF DATE THE PERMIT IS ISSUED CAN BE ARRANGED FOR BY TELEPHONE STAGES OF CONSTRUCTION. I AS NOTED ABOVE. OR WRITTEN NOTIFICATION.