ZONING AMENDMENT UNIVERSAL STEEL LEGAL OPINION,STAFF MEMO - PLANNING Planning Board Report to Council
Regarding Zoning Amendment
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' CITY OF SALEM, MASSACHUSETTS
�. DEPARTMENT OF PLANNING AND
COMMUNITY DEVELOPMENT
KIMBERLEY DRISCOLL
MAYOR 120 WASHINGTON.STREET ♦ SALEM,MASSACHUSETTS 01970
TELE:978-619-5685 ♦ FAX:978-740-0404
LYNN GOONIN DUNCAN,AICD
DIRECTOR
MEMORANDUM
To: Planning Board
From: Lynn Duncan, AICP, Director
Cc: Amanda, Chiancola,Staff Pla ner
Re: Universal Steel site rezoning
Date: January 29, 2016
In response to questions raised at the public hearing and follow up questions from Planning Board
members, I offer the following information:
1. Spot Zoning—You should receive the legal opinion from Beth Rennard, City Solicitor, over the
weekend as to why this rezoning is not spot zoning based on case law.
2. Classification of the proposed use—Tom St. Pierre, Building Commissioner/Zoning Enforcement
Officer, has determined that the proposed use is classified as "sale and storage of building
supplies". You will receive his determination under separate cover. This use is allowed by right in
the B4 zoning district. I note that this use is not allowed in B2.
3. NRCC—From the City's Zoning Map you can see that the NRCC zoning district was not extended to
the south section of Bridge Street past the proposed Gateway Center site other than the existing
Webb's site. This section of Bridge Street was not rezoned as part of the process and the 1965
zoning of R2 was maintained. Across from the Universal Steel site, while rezoned to NRCC,there
are no developable parcels as the land is owned by the MBTA. (link-
http://www.salem.com/sites/salemma/files/uploads/zoningmap.pdf)
Not discussed at the public hearing is the fact that the NRCC district allows a diverse mix of uses by
right. In addition to one and two-family dwellings,the following uses are allowed by right:
laboratories engaged in research, experimental and testing activities; manufacturing of
biotechnology and pharmaceutical products, including fabrication, assembly and finishing work;
operation and expansion of existing business if in compliance with performance standards set forth
in Section 8.4.3.0, and light manufacturing of products other than biotechnology and
pharmaceutical.
I have been asked whether the proposed use is consistent with the NRCC Neighborhood Master
Plan. The Master Plan recommends residential development in scale and character with the
historic neighborhood on this section of Bridge Street, noting that some of the older homes on
Federal and Essex are large and recommending consideration of options for condominium units
with similar footprint and massing. As discussed above,there was no rezoning in response to the
Master Plan for this south section of Bridge Street, other than Webbs. It is critical to note that
when the Master Plan was completed in 2003,we did not know that residential use would be
prohibited on the Universal Steel site,which could have changed the Plan recommendations.
While the Webb proposal is not consistent, a parking lot is also NOT consistent with the NRCC
Master Plan.
Webb's proposal does comply with design guidelines in the NRCC zoning that buildings be located
on the street edge. The Planning Board could certainly work to improve the design of the building
and site through the site plan review process
4. -Land disposition process—As I noted at the public hearing, I would expect Council to vote on the
rezoning at the same time and consistent with its other votes on the project. If favorable,the City
would execute a Land Disposition Agreement (LDA) with Webb's (Sun King LLC)that controls what
is built on the site. The land would not be actually sold until they have all their permitting in place.
If Webb's does not proceed for whatever reason, the City still maintains ownership of the parcels,
and could choose to rezone.
5. Additional zoning questions—
a. Could the project be permitted through ZBA variances? The City does not allow use
variances so this could not be permitted under R2. Also, since the non-conforming use of
Universal Steel has been abandoned for more than 2 years, it cannot be permitted as a
change of a non-conforming use.
b. Could the parcel be rezoned to B2 and the applicant seek a height variance? With the
determination that the use is best classified as"sale and storage of building supplies", B2 is
no longer a viable approach because this use is not allowed in B2.
c. Could restrictive covenants regarding uses be placed on the parcel? This could not be
done through rezoning.
d. Could the project be done as a PUD?—R2 zoning does not allow PUD.
e. Clarification on fast food drive-throughs—It is worth underscoring that certain uses that
concerned the neighborhood, such as fast food drive-throughs, could only be permitted
through a special permit from the Planning Board with a detailed traffic impact analysis
required. Further, there are specific performance standards that are required (see Section
6.7 of the Zoning Ordinance.)
6. How is safety ensured during construction given the existence of contaminants in the soil?-The
LSP from Alliance Environmental,who is working on the proposed Webb site for the applicant, will
attend the City Council hearing on February 4`h to describe the safety plan put in place when
working on a site such as this. I will try to get this information in advance for the Planning Board. I
also note that EPA through its TOSCA division tightly controls the way the construction work will be
allowed to proceed. EPA is currently reviewing the proposed plan.
-2-
CITY OF SALEM, MASSACHUSETTS
BUILDING DEPARTMENT
]20 WASHINGTON STREET,3"'FLOOR
0 TEL. (978) 745-9595
KIMBERLEY DRISCOLL PAx (978) 740-9846
MAYOR THOMAS ST.PIERRE
DIRECTOR OF PUBLIC PROPERTY/BUILDING COMMISSIONER
January 29, 2016
City of Salem
Elizabeth Rennard—City Solicitor
93 Washington Street
Salem Ma. 01970
Re :Universal Steel Site
Dear Beth,
I was asked to determine the use classification of the proposed FN Webb project. It is my opinion that the
proposed use would fall under"sales and storage of building supplies"under section C. Commercial uses under
the table of principle and accessory use regulations in the Salem Zoning Ordinance.
Sincerely,
Thomas SLPierre
Building Commissioner/Zoning Officer
CITY OF SALEM
. ', LEGAL DEPARTMENT
93\WASHINGTON STI rM-•SALEM,MASSACHUSETTS 01970
Tet:978-745-9595♦ EAx:978-7441279
KIMImERLEYDRIscoLL ELIZABETH RENNARD,ESQ. VICTORIA CALD%vFL4 ESQ.
MAYOR GTY soucnoR ASST.CITY SOLICITOR
bcean=d@salam.com vcaldwe8@salem.com
To: Salem Planning Board
cc: Salem City Council
From: Elizabeth Rennard,Esq.
Date: February 1,2016
Pursuant to a request from the Chairman of the Planning Board,set forth below is a legal opinion
relative to spot zoning and the proposed rezoning of 297 to 311 Bridge Street.
Issue.Does the proposed rezoning of 297 to 311 Bridge Streetfrom R2 to B4 constitute "spot
zoning"?
Facts.
City proposes to rezone 297 through 311 Bridge Street from R2(residential 2 family)to B4(business
highway). These parcels have been zoned R2 since the adoption of the 1965 codification of the
zoning ordinance and map.The parcel at 311 Bridge Street,an automobile sales and service station,is
owned by a real estate affiliate of F.W. Webb.The parcel at 297 Bridge Street,the former site of
Universal Steel,was acquired by the City of Salem through a tax taking.A portion of Beckford Way
located between 297 and 311 Bridge Street is also proposed to be rezoned to B4. The property at 297
Bridge Street has undergone environmental remediation to address PCB contamination on the site,at
a cost of over $3 million,paid for by a combination of funding from the Federal Environmental
Protection Agency(EPA),the City,Massachusetts Department of Environmental Protection(DEP)
through a creditor's trust fund, and a loan from MassDevelopment. The remediation conducted and
the activity use limitation(AUL)on the site do not allow for residential development unless further
substantial remediation is conducted.
Following the cleanup performed by EPA,the City paved 297 Bridge to provide temporary commuter
parking during the construction of the MBTA parking garage. This garage opened in late 2014.The
lots to be rezoned front on Bridge Street and are located directly across from commercial freight rail
lines which lie in front of a dog park and pedestrian walkway at Leslie's Retreat Park. To the rear of
the lots,facing Federal,River and Beckford Streets,are multi and single family dwellings which are
part of a local historic district(the parcels to be rezoned are not within the district, except for 2007
r +
square feet located at the rear adjacent to 30-32 Beckford Way). Within 500 feet in either direction
from the parcels,the properties fronting on this section of Bridge Street include small businesses,
specifically auto sales,auto repair and carpet sales.In examining the building permit records for these
sites,the majority of these businesses were erected or remodeled by either variance or special permit
after 1965.
In February 2015,the City issued a Request for Proposals(RFP)for the sale of the 297 Bridge Street
lot.' The City received one proposal to purchase the site from an affiliate of F.W. Webb, Sun King,
LLC. Sun King,LLC proposed to construct anew F.W.Webb facility to replace the existing facility
at 293-295 Bridge Street.As reported by the City Planner at the January 26,2016 public hearing,this
proposed 40,000 s.f.,two-story plumbing sales and supply business will keep F.W. Webb's business
in Salem,maintain 14 existing jobs and provide approximately 8-10 new jobs, add commercial tax
revenue, and redevelop an underutilized parcel at 311 Bridge Street.
In addition,the City Planner reported that the 1996 Master Plan includes this area as a"focus area"as
a part of downtown where economic and institutional development is encouraged. The plan states
that economic development goals and strategies are intended to increase economic diversity,preserve
and promote existing economic strengths and focus particularly on downtown development and re-
development of vacant sites. Specifically,
1. Retain existing firms and attract new business attracted
2. Redevelop vacant public and private sites
3. Determine environmental status of vacant sites
4. Pursue state and federal assistance for environmental cleanup
5. Promote use of programs to encourage cleanup and reuse of sites
At the joint public hearing with the City Council on January 26,2016,residents of the neighborhood
to the rear of the parcels to be rezoned spoke in favor of keeping F.W. Webb in Salem,but not in the
proposed location.Residents raised concerns of lower real estate values,views of a"box"store from
their properties,the development plan's inconsistency with the abutting McIntire Historic District
and North River Canal Entrance Corridor zoning,and re-opening of a contaminated site. In addition,
three Salem business owners, some of whom are residents also, supported the rezoning as it allows a
Salem business to remain in the community,further remediates the site and increases commercial tax
revenue. And finally,written comments provided through the City Clerk are attached hereto for your
review.
Analysis.
Illegal spot zoning occurs only where there is "a singling out of one lot for different treatment from
that accorded to similar surrounding land indistinguishable from it in character,all for the economic
benefit of[or detriment to] the owner of that lot,"Lanner v. Bd of Appeal of Tewksbury, 348 Mass.
220, 229 (1964)(emphasis added). However, it is acceptable for a zoning amendment to benefit or
harm a landowner,provided that the zoning also advances a valid public purpose.See Bd. of Appeals
of Hanover v. Hous.Appeals Comm., 363 Mass. 339, 3 61-62(1973). "Once it is established. . .that
the amendments have a substantive relationship to the promotion of the public welfare, the
amendments are not,by definition,spot zoning." W.R. Grace & Co.-Conn. v. Cambridge City
1 A small portion of the lot was put out for bid separately. Sun King, LLC was the
successful bidder. '
Council, 56 Mass. App. Ct. 559, 570(emphasis added). Massachusetts Courts have sustained zoning
amendments when the change is reasonably related to public convenience and welfare and calculated
to encourage the most appropriate use of land throughout the city."Peters v. City of Westfield, 353
Mass. 635, 640 (1968). Massachusetts Courts have determined that the public welfare is furthered
when:
➢ A company's presence in the community is to be preserved.Numerous cases illustrate that
maintaining a business in the community furthers the public welfare. For example, the Su-
preme Judicial Court of Massachusetts held, in Addison-Wesley Publishing Co. Inc. v.
Reading, 354 Mass. 181, 186(1968), that a zoning amendment that benefited a corporation by
allowing them to expand was valid when it offered benefits to the community. Also, the
Massachusetts Appeals Court, in Raymond v. Building Inspector of Brimfield, 3 Mass. App.
Ct. 38 (1975), upheld a zoning amendment of a non-conforming industrial use rezoned from
agricultural-residential to industrial as it allowed the company to expand.
➢ The general public receives considerable benefit- tax revenue, services and jobs. Public
welfare and convenience is also served when the community receives a benefit in the form of
increased revenue, improved availability of services and job creation. In Rando v. Town of
North Attleborough,44 Mass.App.Ct.603(1998),the Massachusetts Appeals Court upheld a
zoning amendment that added commercial land to compensate for losses in such land, in-
creased the town's tax base, the availability of retail services and employment opportunities.
And, in Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220, 228-229 (1964), the Su-
preme Judicial Court of Massachusetts held that a zoning amendment was valid where resi-
dential property rezoned to business zone provided business services to the community.
➢ Commercial development is achieved.The Supreme Judicial Court of Massachusetts has
found that zoning amendments which encourage development are not spot zoning. See
Shannon v. Building Inspector of Woburn, 328 Mass. 633, 636-638(1952) where an
amendment of a zoning ordinance changing property from a residential zone to a manufac-
turing zone was valid when likely to attract modem manufacturing plants needed by a city.
Other cases with similar findings include Barrett v. Building Inspector of Peabody, 354 Mass.
38, 42 (1968) (rezoning residential parcels to business to accommodate new shopping plaza
needed for community was valid);Martin v. Rockland, 1 Mass.App. Ct. 167, 169(1973) and
Sullivan v. Acton, 38 Mass. App. Ct. 113, 117(1995)(cases holding that commercial devel-
opment is a proper public goal that is appropriately achieved through zoning).
Conclusion:
City officials have presented facts sufficient to support a finding by the City Council that the pro-
posed rezoning promotes the public welfare,and is thus not spot zoning,because it allows commer-
cial redevelopment in an old industrial area, conforms to the City's Master Plan,preserves and ex-
pands services from a company that has provided plumbing supplies to local contractors in the City
for decades, increases the tax revenue through new growth on two underperforming lots historically
used for commercial enterprises,creates additional jobs for area residents,retains existing jobs that
are threatened,and properly zones a lot that has not been remediated for residential use and would
otherwise remain vacant and underutilized.