10 GARDNER STREET - BUILDING INSPECTION 10 GARDNER STREET
i
or r CITY OF SALEM MASSACHUSETTS
BOARD OF APPEAL
120 WASHINGTON STREET, 3RD FLOOR
SALEM, MASSACHUSETTS 01970
TELEPHONE: 978-745-9595
FAX: 978-740-9846 200 11AR I b A 10: 5l
KIMBERLEV DRISCOLL
MAYOR
March 15, 2010
Decision
Petition of TERRANCE NEYLON, seeking to amend a previously issued Special
Permit allowing a third dwelling unit on the property located at 10 GARDNER
STREET, Salem, MA (R-2). Petitioner seeks to remove a clause from the previous
decision requiring the Neylons to live on the premises and to own the property, in
order for the third floor dwelling unit to exist.
A public hearing on the above petition was opened on March 15, 2010 pursuant to Mass
General Law Ch. 40A, Sec. 11, the following Zoning Board members being present:
Annie Harris, Elizabeth Debski, Bonnie Belair and Jimmy Tsitsinos.
Petitioner seeks to amend a Special Permit granted on April 22, 1981.
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. Attorney John R. Keilty represented the petitioner at the hearing.
2. In a petition date-stamped November 3, 2009, the petitioner requested to remove a
clause in the April 22, 1981 decision requiring the Neylons to occupy the property
in order for a third unit to be allowed— upon sale of the property, the building
would revert to a two-family use only.
3. At the hearing, Attorney Keilty explained that the building is currently used as a
three-family house, and that the Neylons currently reside there.
4. At the hearing, no members of the public commented on the petition.
5. At the hearing, Board members commented that if the third unit presented a
problem to neighbors, they would have expressed opposition to the petitioner's
request. They also noted that it did not make sense to allow one owner to have a
third unit, but not another owner of the same building. They further stated they
did not believe owner occupancy should be required to allow for the third unit.
The Board of Appeal, after careful consideration of the evidence presented at the public
hearing, and after thorough review of the plans and petition submitted, makes the
following findings:
i
I. The petitioner's request for an amendment to the previously issued Special
Permit does not constitute substantial detriment to the public good.
2. The requested relief does not nullity or substantially derogate from the intent
or purpose of the zoning ordinance.
3. The petitioner may vary the terms of the Residential Two-Family Zoning
District to keep a third unit in the building, which is consistent with the intent
and purpose of the City of Salem Zoning Ordinance.
4. In permitting such change, the Board of Appeals requires certain appropriate
conditions and safeguards as noted below.
In consideration of the above, the Salem Board of Appeals voted, four(4) in favor
(Belair, Harris, Tsitsinos and Debski), none (0) opposed, to grant the petitioner's request
for a Special Permit, subject to the following terms, conditions, and safeguards:
1. Petitioner shall comply with all city and state statutes, ordinances, codes and
regulations.
2. The conditions of the Special Permit issued on April 22, 1981 shall remain in
effect, except for the one pertaining to owner occupancy.
CJLt vp �adJ� �Llu b. ZQ-nt.x
Elizabeth Debski
Salem Zoning Board of Appeals
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY
CLERK
Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws
Chapter 40A,and shall be filed within 20 days of filing of this decision in the office of the City Clerk.
Pursuant to the Massachusetts General Laws Chapter 40A, Section 11, the Variance or Special Permit
granted herein shall not take effect until a copy of the decision bearing the certificate of the City Clerk that
20 days have elapsed and no appeal has been filed, or that, if such appeal has been filed, that it has been
dismissed or denied and 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.
2
Fifteen Church Street
City Legal Dept. Salem, Massachusetts 01970
John D. Keenan Tel: 508-744-8500
Asst. City Solicitor Fax: 508-744-0111
Fax
Tei Leo Tremblay,Bldg.Inspector From: JDK
Fam 740.0404 Pages: 3
Phaam 744-5918 Date: 09/15/97
no Special Permit Condition CC-
E3 Uigent X Ver Review O Please Comment lit Please Reply 0 Please Recycle
e Common&
Per your request:
Conditioning a Special Permit on Ownership:
Please find attached discussion of such conditions. It does appear that a Special Permit can be
conditioned on ownership of property so long as considerations on which permit is granted
relate to the land and not the applicant.
I hope this is helpful to you.
IDK
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29uarb of JAPPral
'81 APR 29 All :25
APRIL 22, 1981
CITY CL'WS :*FFICE
SALEM S°
DECISION ON THE PETITION OF MR. TERRANCE NEYLON FOR A SPECIAL PERMIT FOR 10 GARDNER STRF
A hearing on this petition was held on April 22, 1981 with the following Board Membe
present: Douglas Hopper. Chairman, Messrs. Piemonte, LaSrecque and Feeherry. Notice
of the hearing was properly sent to abutters and others and a notice of the hearing
was published twice in the Salem Evening News in accordance with Massachusetts General
Laws Chapter 40A.
The Petitioner has requested a Special Permit to add a third apartment to the exists
two-family dwelling at 10 Gardner Street. The property in question is in an R-2 distric
The Special Permit which has been requested may be granted upon a finding by the
Board of Appeals that the grant of the Special Permit will promote the public health,
safety, convenience and welfare.
The Board of Appeals, after considering the evidence presented at the hearing, and
after viewing the property, makes the following findings of fact:
1. The property has adequate room for developing the third floor into a four (4)
room apartment.
2. The property has adequate parking.
3. - The proposed Use will not result in a modification of the exterior of the
existing structure.
4. The proposed addition of a third apartment was unopposeAy abutters.
On the basis of the above findings of fact and on the evidence presented at -the,
public hearing, the Board of Appeals concludes unanimously that the proposed use will
promote the public health, safety, convenience, and welfare and that the proposed use it
In harmony with the City's Zoning_Ordinanee. Accordingly, the Board Votes in favor of
granting a Special Permit to the Petitioner.
The Special Permit is therefore granted in accordance with the following terms and
.conditions:
1. A thitd dwelling unit may be added to the third floor of the property.
This Special Permit shall terminate in the event of the sale of the property
by and Mrs. Terrance Neylon or in the event that both Mr. and Mrs. Terrance Neylon
cease living at the premises.
3. Five parking spaces shall be maintained at the property_
4. The exterior of the structure will not be altered in connection with the
addition of the apartment to the third floor.
5. The Petitioner must comoiv with all annlirahlp fir. . A.. ,-A ,..
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Id.at 336-37,137 N.R2d at 229(dictum).
41031 Conditions Relating to Ownership
Subject to limitations discuaud below,conditions makinit special permits au-g
rel to ttrticutar applicant are not 0hibited by G.L. c. 40 9."Solar
Toning Board ofAppe o neo ,33 Mass.App.Ct.399, ,600 N.E.2d 187,
189(1992),citing favorably Shaman v Boanf ofAfdermen ofNewton,361 Mass. I
75&766-67,282 N.112d 653,659-60(1972),and Mold v. Yarmouth, 340 Mass.
707, 213, 163 NR2d 633,636(1960)(each decided under Old Chapter 40A).
Howey,Section 10 of the Zoning Act explicitly prohibit the conditioning of j
vatianres on ownership,based on the view that"the practice of some local boards
nf•appeals to condition the grant of a variance on the continued ownership of
(rgierty by a particular person"is improper because the hardship necessary to
Issue Ute variance"must be unique to the land or building and not merely to an
1 individual."Maas. H.R.6200, 1973 Sess.at 20;ate alto Huntington v Zoning
I
0 lam MASSACHUSB773 ZONING MANUAL
Board 01Appeals of Hadley 12 Mass.APp.Ct. 710, 428 N.E.2d 826 (1981). I
Although the grant of a special permit may be made personal to the applicant.
based still relAtc ED the
the applitattl-"DDw lv.Botions On �ow grant
a n/to Nver,5 Mass.App.C�land
60
NB.2d 640.645(1977).See alro olar v70ning Board o
33 Mass.App.Ct.39&4o2(1992)(condition makingial Appeals of Lincoln
residential structures permit for accessory
relationship between personal to applicant invalid,in part,because of absence of
P Personal nature of permit and criteria stain in bylaw for
approval of special permit application). Compare Hopengarten v. Board of J
Appeals of UncobL 17 Mass.App.Ct. 1006,459 NE-2d 1271 (1984)(rescript). /
410.52 Condit=Requiring Further Approvals
Atoning board has broad latitude to"condition the right to operate under a permit
Presently issued upon the completion of imposed work in accordance with
identified plana to other certain standards"weld Y.Board oJAppeats danceof c with
ter, 343 Mass. 376,378, 187 N E 2d 854,856(1963)(dictum).However, µfold
r.
annulled a special permit because It condition that"the water situation must be
arranged to the satisfurion of all concerned" was held to"necessarily imply)
that the board moat make a further deterrninatian of substance before the permit
[could) issue." 1d; ,ret also Potter v. Board of Appeals of MansJieW, I
Mass.App.Ct. 89.94,294 N.E,2d 587, 590(1973)(decision '10 disapprove the
Application until revised plans are sttbmiUed"and approved construed as ungual-
8 ed denial ofapecialpermit);f61.&C.Homes,Inc,v,PlanningBoardofGroton,
8 MIUodb(allure to 123. 124-25,391 NE-2d 1232, 1233-34(1 m)(open meeting law
Y care conditions at hearing under subdivision control law).
In Kitt v Board of Appeals of IQngmeadow, 371 Mass. 147, 355 NE,2d 461
(1976).Ute Court went far toward overrulingµ'cid by uphoichng the grant of two
special Permit for a tennis club subject to the following condition;
('r)he building plans.the facility for off street parking,the buffer
areas surrounding the building,the sire,type and location of sins
and the location of the building on the land shall be ag
ved by
A majority vote of the planning Board and this Zonipprong Board of
Appeals before conamuctioe is started.
/d u 152 n.3,333 NB.2d at 465 0.3.
The Cour reasoned as follows;
7110 board did not abdicate it powers as it appears to have done
in the Weld case.It might have been preferable if Ute board had
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HAc..-
C11Y OF
CLE;tX'S OFrICE
DECISION ON THE PETITION OF TERRANCE_ N_ EYLON_REQUESTING A SPECIAL
PERMIT FOR THE PROPERTY LOCATED AV 10 GARDNER STREEV(R-2)
A hearing on this petition was held October 15,1997 with the
following Board Members were present: Gary Barrett Chairman, Nina
Cohen, Albert Hill , Joseph Ywuc and Paul Valaskagis. 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.
At the request of the petitioner, the Salem Board of Appeal voted
5-0, to grant leave to withdraw this petition without prejudice for a
Special Permit to amend the previously granted petition for the
property located at 10 Gardner Street. Granted leave to withdraw
without prejudice.
GRANTED LEAVE TO WITHDRAW WITHOUT PREJUDICE
October 15, 1997
Gary Barrett, Chairman
Board of Appeal
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND
THE CITY CLERK.
Appeal from this decision,if any, shall be made pursuant to Section
17 of the Massachusetts General Laws Chapter 40A, and shall be filed
within 20 days after the date of filing of this decision in the
office of the City Clerk. Pursuant to Massachusetts General Laws
Chapter 40A, Section 11, the Variance or Special Permit granted
herein shall not take effect until a copy of the decision bearing the
certification of the City Clerk that 20 days have elapsed and no
appeal has been filed, or that, if such appeal has been filed, that
it has been dismissed or denied is recorded in the South Essex
Registry of Deeds and indexed under the name of the owner of record
or is recorded and noted on the owner's Certificate of Title.
Board of Appeal
"Tit
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1
Pourb of Appeal
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APRIL 22, 1981 '81 APR 29 All :25
CITY CL Ft{'S IFFICE
SaLE.Nli
DECISION ON THE PETITION OF MR. TERRANCE NEYLON FOR A SPECIAL PERMIT FOR 10 GARDNER STREET//
A hearing on this petition was held on April 22, 1981 with the following Board Members
present: Douglas Hopper, Chairman, Messrs. Piemonte, LaBrecque and Feeherry. : Notice
of the hearing was properly sent to abutters and others and a notice of the hearing
was published twice in the Salem Evening News in accordance with Massachusetts General
Laws Chapter 40A.
The Petitioner has requested a Special Permit to add a third apartment to the existing
two-family dwelling at 10 Gardner Street. The property in question is in an R-2 district.
The Special Permit which has been requested may be granted upon a finding by the
Board of Appeals that the grant of the Special Permit will promote the public health,
safety, convenience and welfare.
The Board of Appeals, after considering the evidence presented at the hearing, and
after viewing the property, makes the following findings of fact:
1. The property has adequate room for developing the third floor into a four (4)
room apartment.
2. The property has adequate parking.
3. The proposed use will not result in a modification of the exterior of the
existing structure.
4. The proposed .addition of a third apartment was unopposed by abutters.
On the basis of the above findings of fact and on the evidence presented at -the
public hearing, the Board of Appeals concludes unanimously that the proposed use will
promote the public health, safety, convenience, and welfare and that the proposed use is
in harmony with the City's Zoning.Ordinance. Accordingly, the Board votes in favor of
granting a Special Permit to the Petitioner.
The Special Permit is therefore granted in accordance with the following terms and
conditions:
1. A third dwelling unit may be added to the third floor of the property.
2. This Special Permit shall terminate in the event of the sale of the property
by Mr, and Mrs. Terrance Neylon or in the event that both Mr. and Mrs. Terrance Neylon
cease living at the premises.
3. Five parking spaces shall be maintained at the property.
4. The exterior of the structure will not be altered in connection with the
addition of the apartment to the third floor.
5. The Petitioner must comply with all applicable fire codes and must
,`Y nT'mi1le
(Titg of �Sujem, �fflas5ach setts
DECISION - APRIL 22, 1981 - MR. TERRANCE NEYLON - PAGE TWO
obtain the approval of the Fire Marshall for the proposed work.
Anthony M. Feehe ry, iSecretaly
APPEAL F:2,-.l
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BOARD OF APPEAL
A COPY OF THIS DECISION AND PLANS HAS SEEN FILED W. ITH. THE PLANNING BOARD AND THE CITY CLERK
of t�alftn mttosac4uartts
'•,.q r`o rublic Propertp Department
Nuilbing Department
(One #stem (6reen
500-745-4595 1Ext. 3 00
Leo E. Tremblay
Director of Public Property
Inspector of Building
Zoning Enforcement Officer
June 7, 1993
Terrance B. Neylon
10 Gardner Street
Salem, MA 01970
Dear Mr. Neylon:
Please accept my apology for any inconvenience or concern caused by my
letter of May 25, 1993. It was a case of having the wrong address and you
can be certain we will take all precautions in the future so as to prevent
this type of error from occurring again.
I thank you for your understanding in this matter and again, please
allow me to extend my sincerest apology to you.
Sincer�el
Leo E. Tremblay
Zoning Enforcement 0 ficer
LET:bms
a SENDER:
•N • Complete items 1 and/or 2 for additional services. I also wish to receive the
W • Complete items 3, and 4a&b. following services (for an extra m
• Print your name and address on the reverse of this form so that we canu
m return this card to you. fee):
4>j Attach this form to the front of the mailpiece,or on the back if space 1. ❑ Addressee's Address N
does not permit.
m • Write"Return Receipt Requested" the mailpiece below the article number. C
p n p 2. El Delivery •m
• The Return Receipt will show to whom the article was delivered and the date r,
c delivered. Consult postmaster for fee. m
m 3. Article Addressed to: 4a. Article Number ot
m Terrance B. Neylon P 091 156 303
E 10 Gardner St. 4b. Service Type i
O Salem, MA 01970 F1 Registered ❑ Insured c
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7. Date of Delivery Nw
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IX 5. Si ure ddress 8. Addressees Address (Only if requested J4
and fee is paid)
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. Signature (Agent)
yPS Form 3811, December 1991 *U.S.GPO:1962-32&402 DOMESTIC RETURN RECEIPT
UNITED STATES POSTAL SERVIE<7+`'
C- 1
Official Business
b. PENALTY FOR PRIVATE
USE TO AVOID PAYMENT
A .�5?�•�,.^
'OF POSTAGE, $300
Print your name, address and ZIP Code here
• Leo E. Tremblay, Inspector of Buildings
One Salem Green
Salem, MA 01970
P 091 156 303
Receipt for
Certified Mail
- No Insurance Coverage Provided
`.:: •aK. Do not use for International Mail
(See Reverse)
'Te'rrance B. Neylon
5ifba�°ardner St.
P,tatem; A
tl MOde01970
Postage $ r L^
Ccrtifiad Fee O}C%�Y�
Special Dellvery.r"eE�•
Restrateelivery Fee
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Return R t Showin heom,
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TOTAL Posta Q O
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Postmark or Date
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STICK POSTAGE STAMPS TO ARTICLE TO COVER FIRST CLASS POSTAGE,
CERTIFIED MAIL FEE,AND CHARGES FOR ANY SELECTED OPTIONAL SERVICES(see front).
1. If you want this receipt postmarked,stick the gummed stub to the right of the return address y
leaving the receipt attached and present the article at a post office service window or hand it to
your rural carrier(no extra charge). 2
2. If you do not want this receipt postmarked,stick the gummed stub to the right of the return m
address of the article, date, detach and retain the receipt, and mail the article. m
3. If you want a return receipt,write the certified mail number and your name and address on a c
return receipt card,Form 3811,and attach it to the front of the article by means of the gummed
ends if space permits.Otherwise,affix to hack at article.Endorse front of article RETURN RECEIPT
REQUESTED adjacent to the number. O
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endorse RESTRICTED DELIVERY on the front of the article. E
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wed
y
(situ of Antem, Massar4usetts
t1uhlir Propertg Department
+Nuilbing Department
(One *alem (Sreen
508-745-9595 Ext. 380
Leo E. Tremblay
Director of Public Property
Inspector of Building
Zoning Enforcement Officer
May 25, 1993
Terrance B. Neylon
10 Gardner St.
Salem, MA 01970
RE: 10 Gardner St. � \
Dear Mr. Neylon: `\
A complaint has been received by tH4is d4'1r,ment regarding the
condition of the garage roof located at he ab ve referenced site. Based
on this complaint, I conducted an on site insp tion and found a hole in
the roof of said garage and a large tiiee limb lying across it. This
presents a dangerous condition as it en le raccoons and other small
animals easy entrance to the structure arida ows them safe and convenient
haven for nesting. This situation must be corrected immediately as it
poses a threat to the safety and welfare of the\ublic.
You are hereby requested to contact this office within five (5) days
of receipt of this notice to advise us of your intentions regarding this
matter.
Sincerely, / '^
Leo E. Tremblay
Inspector of Buildings
• LET:bms
v �
cc: Councillor Gaudreault, Ward 5
Certified Mail #P 091 156 303
/10grdnr/