32 IRVING STREET - BUILDING INSPECTION nj
M
SEP Z 1 3 cs r1l
FILE
Chi of �5ttlem,
DECISIGN ON THE_PETITION OF FERNANDO s MARIE COSTA FOR
7ARIANCES AI
IRVIN G�`ST-/89R TREMONT ST. (R-2)
hearing on this petition was held May 17, 1989 with the following Board
%:embers present: James Fleming, Chairman; Messrs. , Bencal, ?;utt4ng and Labrecaue.
:70tice 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.
Petiticners,owners of the property, are seeking a variance to divide the oarcel
into two 12) lots, and to construct a single family dwelling dweliing cn tide
newly created lot. The locus of the property is in an R-2 district.
-he !variance which has been requested may be granted upon a :finding of
=card ,hat: v "`
_. special conditions and circumstances exist which especially affect ".e and.
building or structure involved and which are not general! ff
aectinz s,her
ands, buildings and structures in the same district:
'_iteral enforcement of the provisions of the Zoning Ordinance would involve
substantial hardship, financial or otherwise to the petitioner:
desirable relief may be granted without substantial detriment to the cublic
;pod and without nullifying or substantially derogating from the intent of
the district or the purpose of the Ordinance.
the _-card of Appeal, after careful .,
consideration of the evidence resented at the
.:earirg, and after viewing the plans, makes the following findings of fact:
The croposec plan is in harmony with the surroundin neighborhood.
-e utiii-ation of the new lot for a single family dwelling would eliminate
an area .where illegal dumping of rubbish and debris has occured.
,, veral neighbors and the warn Councillor spoke in savor c_' the oet'_t1on.
T'.^e oniy use for theland is for a single family residence.
n the 'oasis of the above findings of :act, and on the evidence presentee at the
earing, the Board of Appeal concludes as follows:
Special conditions exist which esecially affect he Subject preperiv r
not the district generally;
Literal enforcement of the provisions of the Ordinance ,would work a
ubstantiai hardship on the the petitioners;
relief recuested can be granted without substantial detriment --e
public good and without nullifying or substantialiv derogating from
intent Of he district or the pureose of the Ordinance.
• DECISION ON THE FETTTION OF FERNANDO & MARIA COSTA FOR
VARIANCES AT 32 IRI!INO ST. !89R TREMONT ST. , SALEM
page two
Therefore, the Zoning Board of Appeal voted unanimously, 4-C, to grant the
variances requested, subject to the following conditions:
1 . Prior to occupancy of the new dwelling, the petitioner must obtain
Certificate of Occupancy.
2. The petitioners obtain the proper numbering of the new dwelling from -ne
Salem Board of .ssesscrs.
The petitioners meet all the requirements of the Salem Fire :'epartment
relative to fire safety.
The only permitted use of the new lot is for a single family home.
The petitioners must meet all the requirements of t'-:e . State Building
Code and perform all construction as per the plans and dimensions suomirrec
to the Board c .appeal.
the petitioners must erect stockade fencing along lets 298 and 292
distance of `hirty M) feet form lot 293.
The petitioners must create by legal instrument the right of way as --''no':;n
on the plan submitted. Said right of 'way must be created in perpenui`y ane
recorded with the Registry of Deeds.
GRANTED
C�1Z[ e7
��ames rl. ;tem ng, Esq.
Chairman, Board of Appeal
COPY OF THIS DECISICN HAS BEEN FILED WITH THE PLANNI;;O BOARD AND THE 0--'!
9 ( q'-11.., ": c:. If :❑:. .,.'.ih hr, m::9' JI!i w v=. .on 17 _,
s',nil h2 1 d =p
_. lhc• J ,e of l'liin" of F.s daclslcn m t,n.e utllce et tale C:t;
.. ..non. __ ru'._: ' .' c2rIialtle❑ n; tl.c ...: L I I< t .:. . r:
Cd �..1:I J il,'ki his nCO11 or l: .:. II cLf,l
i. ..]5 CCCn (IIS TIJ`ed or i ee�^_d '�i recordoo Io the .__.^:(
•s:r, of Deeds ❑nd indexed under ih. n:me or the m::ner of refer❑ ;;r
is recorded and noted on the owner's C_.—,iicate of Title.
BOARD OF APPEAL
2. THE PLANNING BOARD CASE
The Pldnning 'Boardd,approved the two lot subdivision plan and
waived the 200 'foot frontage requirement for the substandard
lot pursuant to the Subdivision Control Law.
Chapter 41 , Section 81R, MGL authorizes a Planning Board to
waive the minimum frontage requirement of the Subdivision
Control Law provided the Planning Board determines that such
waiver is in the public interest and not inconsistent with
the intent and purpose of the Subdivision Control Law. +r-TfieN
.minimum frontage'^requirement of the•Subdivision-Control�Law
is found in Chapter 41 , Section 81L, MGL which states that
.the lot frontage is the same as is specified in the local
zoning bylaw, or 20 feet in those cases where the local zoning,
bylaw does not specify_a_minimum,"lot-frontage.
The Superior Court judge annulled the decision of the Plan-
ning Board waiving the frontage requirement as he concluded
that the Planning Board waiver was not in the public interest
and was contrary to the intent and purpose of the Subdivision
Control Law. The Massachusetts Appeals Court reviewed the
purposes of the Subdivision Control Law, and held that the
Planning Board waiver was consistent with the purposes of the
Subdivision Control Law, and that its decision to approve the
two lot subdivision plan was not in excess of its authority.
. . . the primary significance of frontage for pur-
poses of the Subdivision Control Law is to ensure
access to vehicular traffic and the availability
of utilities and municipal services to lots in the
subdivision Concern under the Subdivision
Control Law arises from frontages too narrow to
permit easy access or from frontage connected to
the lots they serve by necks too narrow or wind-
ing to permit easy access. . . .
The two lots shown on the Mercers ' subdivision plan
have long frontages on an established public way.
Both lots are roughly rectangular, and no potential
problems concerning access or the provision of muni-
cipal services or utilities have been suggested.
In these circumstances we do not think it can be
said that the planning board exceeded its authority
in concluding that the fourteen foot frontage devi-
ation would not be inconsistent with the intent and
purpose of the Subdivision Control Law.
3. ZONING V. SUBDIVISION CONTROL
In deciding this case, the Massachusetts Appeals Court had the
opportunity to comment on the fact that the Planning Board and
Zoning Board of Appeals are faced with different statutory
responsibilities when considering the question of creating a
substandard lot. Although Chapter 41 , Section 81R gives the
Planning Board the authority to waive the frontage requirement
for the purposes of the Subdivision Control Law, the court
3.
frontage. The Arrigo's,neighboring property owners, appealed the deci-
sion of the Board to the Superior Court.
In February of 1977, the Mercers applied to the Planning Board for
approval of a plan showing the two lot subdivision. The Planning Board
approved the subdivision plan even though one of the lots shown on the
plan did not have the sufficient frontage as required by the Zoning By-
law. The Arrigos also appealed the Planning Board's decision to the
Superior Court.
The judge in Superior Court reversed the decisions of the Planning
Board and Zoning Board of Appeals, and the Mercers appealed both
reversals to the Massachusetts Appeals Court.
1 . THE BOARD OF APPEALS CASE
In granting the dimensional variance for the substandard lot, '
the Board of Appeals, failed to make the necessary finding
that the substantial hardship be based upon the soil , shape
or topography of the land. The Massachusetts Appeals Court
found that the Superior Court judge was correct in over-
turning the decision of the Board of Appeals in that the
granting of the variance by the Board was in excess of its
authority.
There is no basis for the Mercers ' contention
that the judge erred when he reversed the
decision of the board of appeals granting a
variance. The judge found that there were no
conditions especially affecting the land in
question. . . . and that any hardship was purely
financial and was the Mercers ' own making. The
applicable principles are illustrated by Warren
v. Boardof A eals of Amherst, Mass. Adv.. SF-
98 522, 530-534. . The Mercers urge
that the deviation from the required frontage,
6.68 percent, was deminimis, but the frontage
deviation in the Warren case was only two per-
cent and the variance granted by the board was
nevertheless annulled. As all the conditions
for a variance set out in G.L. C. 40A, § 10,
were not met, the judge correctly annulled the
decision of the board of appeals.
2.
t
SEP Z 051 ` J
FILL `
Cifu of tt1Pm
%rw Y -POUrb Of C�IT�tP22j
DECISION ON THE PETITION OF FERNANDO i MARIE COSTA FOR
VARIANCES AT 22 IRVING ST./89R TREMONT ST. (R-2)
hearing on this petition was held May 17,1989 with the following Board
:,embers present: James Fleming, Chairman; Messrs. , Bencal, Nutting and La'brecoue.
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
lenerai Laws Chapter 40A.
Retitioners,owners of the property, are seeking a variance to divide the parcel
into two (2) lots, and to construct a single family dwelling dwelling cn whe
newly created lot. The locus of the property is in an R-2 district.
-he Variance .which has been requested may he granted upon a finding of :'-:e
=card that:
-
:. special conditions and circumstances exist which especially affect tKe _and,
buiiding or structure involved and which are not general ; affecting other
!ands, buildings ana structures in the same district;
literal enforcement of the provisions of the Zoning Ordinance would involve
substantial hardship, financial or otherwise to the petitioner:
n. desirable relief may be granted without substantial detriment to the public
:food and without nullifying or substantially derogating from the intent of
the district or the purpose of the Ordinance.
-he Acard of Appeal, after careful consideration of the evidence presented an the
nearing, and after viewing the plans, makes the following findings of Pact:
proposed pian is in harmony with the surrounding; neighborhood.
The utilization of the new lot for a single family dwelling .would eiminate
an area where illegal dumping of rubbish and debris has occured.
1 . .everal neighbors and the Wara Councillor spoke in favor of the petition.
^:e only use for theland is for a single family residence.
"n one basis of the above findings of fact, and on the evidence presentea at the
nearing, the Board of Appeal concludes as follows:
1peciai conditions exist which esecially affect he subject property
not the district generally;
i. literal enforcement of the provisions of the Ordinance would work a
sucstantial hardship on the the petitioners;
3. The relief requested can be granted without substantial detriment
J
public good and without nullifying or substantially derogating from it
intent of the district or the purpose of the Ordinance.
i
DECISION ON THE PETITION OF FERNANDO & MARIA COSTA FOR
VARIANCES AT 32 0VING ST./89R TREMONT ST. . SALEM
page ;wo
Therefore, the Zoning Board of .Appeal voted unanimously, 4-0, to grant 0e
variances requested, subject to the following conditions:
i . Prior to occupancy of the new dwelling, the petitioner must obtain a
Certificate of Occupancy.
2. The petitioners obtain the proper numbering of the new dwelling from _".e
Salem Board of Assessors.
3. The petitioners meet all the requirements of the Salem Fire Deoarc^enc
relative to fire safety.
0 . The only permitted use of the new lot is for a single family home.
5. The petitioners must meet all the requirements of OneState Building
Code and perform all construction as per the plans and dimensions s'uctniztec
to the Board of Appeal.
a. .e petitioners must erect stockade fencing along -lots 298 and 292 Yr
distance of thirty (30) feet form lot 293.
T. The petitioners must create by legal instrument the right of '.gay as mown
on the plan submitted. Said right of way must be created in perpecu_`; ana
recorded with the Registry of Deeds.
GRANTED
�6401
;a"mesi�Ilem g, —Esq.
Chairman, Board of Appeal
COPY OF THIS DECISION HAS BEEN FILED 'WITH THE PLANNING BOARD AND THE 7177 CLERK
::d. he r.9a <_
..,.... .Q.,_.:ca U or
mc _,n� �
.. ..r-,. C._ncra) La:vs. Ch r'.er „CS, ui shod he Med 20
i-ie or r'.i;nC cl tr.,a dadsion m me onlce of the C'; Cle''.:.
'nt'_ 1 h :n G.i'.. .. ite is L - r,nt 1 :. a ry . ._
cer:;n< tion of u.e th:.t ..-s't ('r. o na
no ao)unl has been t.':.':, or ii sura IrMA: r. ;.51
i''..;;, '.:'IGS a ins Leen dismissed or hooted Is record2o w the S....., C_9=:<
Ra^s;ry of Deeds and indexed under the name or the owner of ra_cra or
is recorded and noted on the owner's Cer;ficate of title.
BOARD OF APPEAL'
n•o �b4
(City of �ttlem, flassadlusetts
�attrd ai �upeal
DEC-ISIONTO.N:T-HE PETITION OF MARIA A. COSTA FOR A VARIANCE
,AT 32 IRVING ST. (R-2)
A hearing on this petition was held October 17, 1990 with the following Board
Members present: Richard Bencal , Chairman; Joseph Correnti , Edward Luzinski ,
Richard Febonio and Mary Jane Stirgwolt. 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 a Variance from rear setback
requirement to allow construction of a deck in this R-2 district.
The Variance which has been requested may be granted upon a finding by this
Board that:
1 . Special conditions and circumstances exist which especially affect the land,
building or structure involved and which are not generally affecting other
lands, buildings and structures in the same district.
2. Literal enforcement of the provisions of the Zoning Ordinance would involve
substantial hardship, financial or otherwise, to the petitioner.
3. Desirable relief may 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, and
after viewing the plans, makes the following findings of fact:
1 . That there was opposition by the abutters.
2. That there was no one present to speak in favor.
On the basis of the above findings of fact, and on the evidence presented at the
hearing,=the-Board .o€.Appeal-concludes :as-follows:
1 . Special conditions do not exist which especially affect the subject property
but 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.
i`
DECISION ON THE PETITION OF MARIA COSTA FOR A VARIANCE AT
32 IRVING ST. , SALEM
page two
Therefore, the Zoning Board of Appeal voted unanimously, 0-5, against the
granting of the requested variance. The motion to grant having failed to garner
the required four affirmative votes needed to pass. the Variance is denied.
DENIED
October 17, 1990
'94chard 1. Fonio, 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 9119,shall 5e made pursuant to Sof
ection ly
the Mass. General Laws.Chapter 808, and shall be filed •�:ca,hin 20 days
after the data of tiling of this decision t SJS.'c o Ilan 111 ca,
variance
Pursuant to Mass. General Laws, h .
of
•mit granted herein s 'I •:o!toke eii_ct uo l a ccnv of the
`t
decision. .r"'' the c=rtitication of the City Cle'k I` `���a✓
las been
elapsed an, 'a rr.,—, I has been toed, or that. if such ap^•'-
filed, that it r�as hcen g,smissed or denied is recorded i:: the South Essex
under the name or the owner of record or
Registry of Deeds and indexed
Is recorded and noted an the owner's certificate of Title.
BOARD OF APPEAL'
b Cts of *Iem, 'Massar4usetts
..: F Paurb of �ppral
AMENDMENT TO THE DECISION ON THE__PETITION OF FERNANDO AND
MARIE COSTA FOR VARIANCES AT 32 IRVING ST�/89R TREMONT ST. (R-2)
A hearing on this petition was held May 17, 1989 with the following Board
Members present: James Fleming, Chairman; Messrs. , Bencal , Nutting and
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.
Petitioners, owners of the property, are seeking a variance to divide the
parcel into two lots, and to construct a single family dwelling on the newly
created lot. The locus of the property is in an R-2 district.
The decision on this petition was filed at the Registry of Deeds on November
2, 1989, the Board of Appeal at it ' s January 17, 1990 hearing voted unanimously
5-0 to amend that decision by adding the following:
"Therefore, the Zoning Board of Appeal voted unanimously, 4-0, to grant the
variances requested, more specifically, to construct a single family dwelling
on Lot 298 with frontage (Minimum Lot Width) of 0 feet; a rear yard of 15.5
feet; and an area of 5,818 + square feet of land, subject to the following
conditions:"
All seven (7) conditions of the May 17, 1989 are to remain unchanged.
James M. Fleming, Chairm
A COPY OF THIS AMENDMENT HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK
from -iiia decision, if any, shall be made pursuant to Section 17 of
1"e ss. General Lmvs, Chapter So% and shall be filed within 20 days
.y .._zr the :!nt� cf Giny of this decision in the othce of the City Cicrk.
to \'acs. L!on^_rel Laws, clup`.er 808, Sad_-^n 11, the Ve.riorica
to rmc.it ^^nted herein shall not take effe:t entil a c•:oy of the
cV __.san, b_:.:h:C -nc ccrolic.^.tion et the City Clerk t:vli 27 drys have
_n� 1;o acpe21 has hoen filed, or that, ii such appeal has been
� `idismissed or danied is recorded in the South Essex
Rei sr:y of Daedc and indexed under the name or tiie caner of record or,
c rY- is recerdcd and r.oted on the owner's certificate of Tide.
BOARD OF APPEAL!
i
i
a
m X061
� fwd
Hie?oa.r, `S�p
e
LO COS �e
PLAN REFERENCE: APPROVAL UNDER THE SUBDIVISION
"PLAN OF BUILDING LOTS IN DANVERS & SALEM FOR SALE BY E.S. CONTROL LAW NOT REQUIRED.
a 6 POOR & W.D. NORTHEND, SCALE 1 "=100 ', NOVEMBER 1852, J.C.
"+ FOSTER, C.E. " FILED IN ESSEX SOUTH REGISTRY OF DEEDS AT THE SALEM PLANNING BOARD
Gkou£ s>atc7 END OF BOOK 476.
v 7 CERTIFY THAT THIS PLAN CONFORMS TO THE RULES AND
REGULATIONS OF THE REGISTEMOFDS.
0 /,/V
/
j
LOCUS P Y
SCA1 E: / = 2400"
LOT 297 I-R (SET) LOT 299
ADOLF L. & CHRISTINE D'AMORE WILLIAM G. & SIMONNE GONGAS
91 TREMONT STREET 89 TREMONT STREET
o Dy
��� 105 bb���'��' �A \\\\ 656`s)•
OF
O
R�b
ERT
MO No1DETAIL ` 7S J
o
i \ s�,AECISTEOOa
NOT TO SCALE FS\ I.P. (FD.)
S
m `�'�'. `sr'• o \ •s _ LR. (SET) /' °xql LRNas
()as'57FF �\ LOT 293 sp�`� \\ Zc X G
ap° Or, l2 JOSE & MARIA SILVA 6\\ `�C�o
LOT 298 H
�hWyr 34 IRVING STREET p CK
yh� „ fes A= 5 818rS.F \ /
LOT 292 / � 1b.�l LOT 300
F + GARAGE TO 3r, ,t ANTONIO & ADAIDE PICANO
A= 5,128 -S.F , BE REMOVED
F ' o 0 85 TREMONT STREET
h
00 00
LOT NUMBERS REFER TO CITY OF SALEM
ASSESSORS MAP 16.
L R. (SET)
#32 61
pS. OQO LOT 291
/C3 QP STEVEN J. & CARLA BEKERITIS
�S \A 30 IRVING STREET
O
FOR RE6IS74 USF o Zy PLAN
OF LAND
IN
SALEM
PROPERTY OF
w
FERNANDO REIS & MARIA ALICE COSTA
SCALE: 1 "=20NOVEMBER 1, 1989
NORTH SHORE SURVEY CORPORATION
1 INCH = 20 FEET 181 ESSEX STREET - SALEM, MA.
20 0 20 40
#392