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27 GARDNER STREET - BUILDING INSPECTION i 27 GARDNER STREET BOWES, HALLINAN & DEROSIER ATTORNEYS AT LAW 301LAFAYETTE STREET P.O. BOX 987 , SALEM, MASSACHUSETTS 01970 (617) 741-1555 ROBERT D. BOWES DAVID J.HALLINAN MARGARET F.DEROSIER December 10, 1986 Michael E. O'Brien, Esq. City Solicitor City of Salem 81 WashingtonStreet Salem, MA 01970 Dear Mr. O'Brien: �( vl 7 d�7 Enclosed is a memorandum regarding property on Gardner Street in. Salem which the Building Inspector, Mr. Monroe- spoke to you about. I will be talking to you about this later on today. Very truly yours, Robert D. Bowes Enclosure (1) RDB/cao CC: Mr. Monroe At the time of enactment of the Salem Zoning Ordinance, the property in question conformed in all respects to the zoning requirements , except for lot size and other dimensions . A two- family residence in an R2 zone is not a non-conforming use, and therefore cannot be abandoned. There has never been an abandonment of the use of the lot for residential purposes . Therefore, a variance is not needed to conform the lot. If, however, it is the determination of the building inspector that a failure to use a two-family residence as a two-family residence in an abandonment of a non-conforming use, then the following would apply: Where the. conduct of the building owners was insufficient to indicate an intent to abandon the non-conforming use, the courts in the following cases held that under the particular circumstances and zoning ordinances involved, occupancy of a non-conforming multiple-family use at less than full capacity did not constitute an abandonment of such non-conforming use. 1. The court in Brown v Gerhardt (1955) Ill 2d 106 , 125 NE2d 53, an action for an injunction and declaratory relief against a city' s enforcement of a single-family zoning restriction, held that occupancy of a five-unit multiple dwelling by a single family did not work an abandonment of the structure' s pre-existing non-conforming character where the evidence showed that such reduced occupancy was intended only as a temporary sus ension, and not a change, of the multifamily use. From the facts recited by the court, it appeared that the structure in dispute was established as a multiple-family dwelling prior to the area' s being zoned as a single-family district pursuant to an ordinance which permitted the continuance of existing non-conforming uses until discontinuance or abandonment of such uses. It further appeared that the dwelling was occupied by a single family at-two different periods during the existence of the non-conforming use, the first of such reduced occupancies occurring for 6 years during the res Great Depression, __nd the Second of such reduced occupancies r �p�� - occurring during refurbishing and repair work preparatory to leasing apartments to tenants. Moreover, it appeared that while some apart- ment facilities were disconnected or stored, no fixtures were removed in order to convert the building to single-family use, and that the owners had later undertaken substantial remodeling and modernization to make the premises suitable for multiple occupancy. Taking judicial notice of the fact that during the Great Depression low occupancy rates were the norm, the court, reversing the trial court' s judgment denying the plaintiff landowner' s injunction against the city, found that no physical changes had been made in the structure during the first period of single-family occupancy which would indicate an intent to discontinue the multiple-family use, and that the changes and -2- improvements made during the second period of single-family occupancy were performed for the express purpose of continuing the multifamily use. Reasoning that time alone is not an essential element of chanqe or abandonment of a non-conforming multifamily use the court concluded that while a change in the use of a non-conforming structure may constitute an abandonment or discontinuance of such use, the circumstances of the present case did not constitute changes of such permanent nature as to establish such discontinuance or abandonment, notwithstanding that the aggregate single-family occupancy lasted nearly 8 years . 2 . The occupancy by a single family of a non-conforming two- family dwelling for a period of 5 years did not extinguish the building owner' s vested right in the non-conforming use, the court held in East Greenwich v Day (1977) 119 R1 1, 375 A2d 953, an action by the building owner to review a zoning board' s denial of a permit to maintain a two-family structure, where the evidence revealed no overt acts by the owner' s predecessors which unequivocally indicated an intent to abandon the non-conforming use. It appeared that the multiple-residence permit was denied pursuant to a zoning ordinance prohibiting renewal of a non-conforming use which is discontinued for 2 years. It further appeared that the plaintiff building owner' s predecessors took no steps to remove the fixtures and improvements appurtenant to a multifamily dwelling., such gs a double driveway, separate utility meters, and separate kitchen and bath facilities, the predecessor' s only affirmative action having been to request reassessment of sewer charges on the basis of singel-family occupancy of the building. Denying a writ of certiorari to review the trial court' s decision vacating the zoning board' s ruling, the court stated that the 5 year conforming use of the dwelling was not conclusive of an abandonment under the ordinance, but was merely evidence of an intent to abandon, and, approving the trial court' s finding that the change of the sewer assessment was not clearly indicative of such intent, concluded that the circumstances surrounding the cessation of the non-conforming use by the building owner' s predessors did not constitute an abandonment thereof. (situ of �ttlem, Masliar4usetts Public Propertp Department +Rludbing Department (ane #alem (keen 508-745-9595 Ext. 3811 Leo E. Tremblay Director of Public Property Inspector of Building Zoning Enforcement Officer June 15, 1995 TO WHOM IT HAY CONCERN RE: 27 Gardner Street, Salem (R-2) Please be advised that the records on file in this office indicate that the above referenced property is a lawful one (1) family dwelling located in a Residential R-2 District and said use may continue. This is to determine use only and is no way is meant to confirm or deny whether said property conforms to all building, electrical, gas, plumbing, fire or health codes. Sincerely, Leo E. Tremblay Zoning Enforcement Officer LET: scm cc: Councillor Gaudreault, Ward 5 LAW OFFICES MILLS & TEAGUE ONE BOSTON PLACE-37TH FLOOR BOSTON,MASSACHUSETTS 02108 � 2a nn { 8 617-361-3959 R L�C C i�I1`U DAVID A.MILLS 17 � PF 4, E.H, f4k$,Jr",. FRANKJ.TEAGUE EDWARD T.PATTEN November 24, 1986 William Monroe, Building Inspector City of Salem City Hall Annex One Salem Green Salem, Massachusetts 01970 RE: Bruce Ferriero,e' 7 Gardner Street, Salem Dear Mr. Monroe: Please be advised that this office represents Bruce Ferriero in the possible purchase of the above property. He has informed me that a variance is required to engage in the multi- family use of the property because the property has not been so used for some time. I am further informed, however, that the property is located in an R2 District which apparently permits multi-family dwellings. Accordingly, I would appreciate the opportunity to discuss this matter with you by telephone as Mr. Ferriero is scheduled to close this transaction on or before November 30, 1986, and desires to assess the potential for a multi- family use based on existing zoning ordinances. Since I will be on vacation beginning the close of the work day on Wednesday, November 26, a telephone call before then would be of great assistance. Thank you for your cooperation. Ve�rryp truly yours, - Edward T. Patten ETP/eah cc: Bruce Ferriero Lawrence O'Keefe, Esquire 1W.4 ® fav gra?' 0 d.GFicc,=