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271 JEFFERSON AVENUE - BUILDING INSPECTION 271 Jefferson AVe. John H. Carr,Jr., Esq. 9 North Street Salem,MA 01970 Phone: 978-825-0060 Fax: 978-825-0068 �w June 25, 2009 e �, RECOVO By Hand r Salem City Clerk a JUN 1 5 2009 CO City Hall 93 Washington Street Salem, MA 01970 5 G 9 Re: Joshua R. Levesque, et al. v. United Financial Consultants,LLC, et al. Dear Madam Clerk: Enclosed please find: 1. Notice To Salem City Clerk Of Appeal To Essex Superior Court From June 8, 2009 Decision Of Salem Board Of Appeal Granting Variances and A Special Permit To United Financial Consultants, LLC Concerning 272 Jefferson Avenue, Salem, Massachusetts,including Exhibit A; 2. Attached copy of Complaint Pursuant To M.G.L. Chapter 40A, Section 17 Appealing the June 8, 2009 Decision of the Salem Zoning Board of Appeals Granting Variances and a Special Permit at 272 Jefferson Avenue, Salem, Massachusetts 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 foregoing. Very truly yours, John If. Carr, Jr. Enc. cc Mr. Thomas St. Pierre, Salem Building Inspector—By Hand Mr. Joshua R.Levesque—By Hand Mr. Kevin C. McGrath—By Hand Mrs. Rayleen H. McGrath—By Hand COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTIONNO: 7009- 9A JOSHUA R. LEVESQUE, KEVIN C. MCGRATH,and ) RAYLEEN H. MCGRATH, ) 1` 12 PLAINTIFFS ) V. > ,® RE011VED UNITED FINANCIAL CONSULTANTS,LLC, and ) JON 1 5 1009 REBECCA CURRAN, BETH DEBSKI, RICHARD ) DIONNE, ROBIN STEIN, JIMMY TSITSINOS, ANNIE ) �' HARRIS and BONNIE BELAIR, BEING REGULAR and ALTERNATE MEMBERS OF THE ZONING BOARD ) � OF APPEALS OF THE CITY OF SALEM, ) MASSACHUSETTS, ) DEFENDANTS ) NOTICE TO SALEM CITY CLERK OF APPEAL TO ESSEX SUPERIOR COURT FROM JUNE 8,2009 DECISION OF SALEM BOARD OF APPEAL GRANTING VARIANCES AND A SPECIAL PERMIT TO UNITED FINANCIAL CONSULTANTS, LLC CONCERNING 272 JEFFERSON AVENUE 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 8, 2009 Decision of the Salem Zoning Board of Appeals granting Variances and a Special Permit to United Financial Consultants, LLC,owner of Unit 1 of"The 272 Jefferson Avenue Condominium," 272 Jefferson Avenue, Salem, Massachusetts 01970,which property is located in a B-I Zoning District. Said June 8, 2009 ZBA Decision was filed with the office of the Salem City Clerk on June 8, 2009. A copy of said Complaint filed as Essex Superior Court Civil Action No. 7.UU�f— �/ 9/4 on June 25, 2009,bearing the date-stamp of the Essex Superior Court, is attached hereto. Respectfully submitted, Joshua R. Levesque, et al, By their attorney, June 25, 2009 John H. Carl*Jfr, sq. 9 North Street Salem, MA 01 0 978-825060 BBO#075281 1 u, r - COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT ^ t7 974 CIVIL ACTION NO: -Zola t2 JOSHUA R. LEVESQUE, KEVIN C. MCGRATH, and RAYLEEN H. MCGRATH, PLAINTIFFS ) AN 2' 5 2009 V. ) UNITED FINANCIAL CONSULTANTS, LLC, and ) 9 5 REBECCA CURRAN, BETH DEBSKI, DIONNE ROBSTEIN, JIMMY TSITINORICHARD 0�� -43 IR, ANNIE j �b�'�yo 9� HARRIS and BONNIE BELABEING REGULAR and ) 06 y�Cyto ALTERNATE MEMBERS OF THE ZONING BOARD ) o� OF APPEALS OF THE CITY OF SALEM, g�,y �A MASSACHUSETTS, ) �Y DEFENDANTS ) COMPLAINT PURSUANT TO M.G.L. CHAPTER 40A,SECTION 17 APPEALING THE JUNE 8,2009 DECIISION OF THE SALEM ZONING BOARD OF APPEALS GRANTING VARIANCES AND A SPECIAL PERMIT AT 272 JEFFERSON AVENUE, SALEM,MASSACHUSETTS This is an appeal from a Decision of the Salem, Massachusetts Zoning Board of Appeals (hereinafter"ZBA"or"Salem ZBA'), dated June 8, 2009, and filed with the Salem City Clerk on June 8, 2009, granting Variances to United Financial Consultants, LLC from(a)minimum lot area, (b) minimum lot width, (c) minimum front, side, and rear yard setbacks, (d)minimum lot coverage by all buildings, (e) use density to allow a fifth residential use, where the legal maximum is three residential units, and there is already one grandfathered residential use above the maximum, (f) structural density,to allow a second principle dwelling structure on the same lot, (g)parking, to allow five(5)parking spaces, instead of the required 8-space minimum, and a Special Permit to allow for the"reconstruction"of a free-standing structure with a non- conforming use at 272 Jefferson Avenue, Salem, Massachusetts, which property is located in an B-I 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 June 8, 2009 Decision is attached hereto as Exhibit A. PARTIES Plaintiffs 1. Plaintiff,Joshua R. Levesque, owns and resides at 268 Jefferson Avenue, Salem, Massachusetts 01970, which property directly abuts 272 Jefferson Avenue, Salem, Massachusetts and is located within the 300-foot notice requirement of the Salem Zoning Ordinance. 2. Plaintiffs, Kevin C. McGrath and Rayleen H. McGrath, are husband and wife who own and reside at 3 Arthur Street, Salem, Massachusetts, which property directly abuts 272 Jefferson Avenue, Salem, Massachusetts and is located within the 300-foot notice requirement of the Salem Zoning Ordinance. Defendants 3. Defendant,United Financial Consultants, LLC (hereinafter"United") is a Massachusetts limited liability company having its usual place of business at 82 Cranberry Highway, Orleans,Massachusetts 02653-2411,which owns Unit No 1 of The 272 Jefferson Avenue Condominium,272 Jefferson Avenue, Salem,Massachusetts 01970, and is the petitioner/beneficiary of the June 8, 2009 Decision of the Salem ZBA herewith being appealed. 4. Defendant,Rebecca Curran, who resides at 14 Clifton Avenue, Salem, Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Variances and Special Permit at the May 20, 2009 hearing of the Salem ZBA. 5. Defendant, Beth Debski, also known as Elizabeth Debski,who resides at 43 Calumet Street, Salem, Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Variances and Special Permit at the May 20,2009 hearing of the Salem ZBA. 6. Defendant, Richard Dionne, who resides at 23 Gardner Street, Salem, Massachusetts 01970, is a regular member of the Salem ZBA who voted to grant said Variances and Special Permit at the May 20, 2009 hearing of the Salem ZBA. 7. Defendant, Robin Stein, who resides at 141 Fort Avenue, Salem, Massachusetts 01970, is a regular member and the chairwoman of the Salem ZBA who voted to grant said Variances and Special Permit at the May 20, 2009 hearing of the Salem ZBA. 8. Defendant, Jimmy Tsitsinos, also known as James Tsitsinos, who resides at 6C Wharf Street, Salem, Massachusetts 01970, is an alternate member of the Salem ZBA who voted to grant said Variances and Special Permit at the May 20, 2009 hearing of the Salem ZBA. - 2 - 9. Defendant, Annie Hams, who resides at 28 Chestnut Street, Salem, Massachusetts 01970, is a regular member of the Salem ZBA who did not participate in the May 20, 2009 vote of the Salem ZBA on United's petition. 10. Defendant, Bonnie Belair, whose mailing address is P.O. Box 685, Salem, Massachusetts 01970, is an alternate member of the Salem ZBA who did not participate in the May 20, 2009 vote of the Salem ZBA on United's petition. (This is the only address available for Ms. Belair at the office of the Salem ZBA.) 11. All of the foregoing Plaintiffs have standing to bring this action, as all are substantially aggrieved by the June 8, 2009 Decision of the Salem ZBA granting said Variances and said Special Permit. JURISDICTION 12. This Court has jurisdiction over this matter pursuant to Section 17 of Chapter 40A of the Massachusetts General Laws. 13. This case is timely, as it has been filed within twenty(20)days from June 8, 2009, which is when the June 8, 2009 Decision of the Salem ZBA was filed with the Salem City Clerk. PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS 14. 272 Jefferson Avenue, Salem, Massachusetts (hereinafter"the property") is a rectangular parcel of land which is fifty (50) feet wide (on the street) and one hundred(100)feet deep. 15. There is a 4-story building located almost exactly on the Jefferson Avenue sidewalk, which building is approximately thirty-one (3 1) feet wide and thirty-six (3 6) feet deep. 16. The property is located in a B-1 Zoning District. 17. The existing 4-story structure consists of four(4)condominium units, each located on its own floor of the building. In addition,the condominiums on the second, third, and fourth floors (units 2-5 inclusive) each have exterior rear porches located directly above one another. 18. According to the B-1 zoning for the district in which the property is located: a. The"minimum lot area" is 25,000 square feet, as compared with 5,000 square feet for the existin grandfathered lot; b. The"minimum lot area per dwelling unit" is 3,500 square feet, as compared with the grandfathered 1,250 square feet for each of the existin 4 dwelling units in the existin grandfathered 4-story structure; - 3 - c. The "minimum lot width"is 100 feet,as compared with 50 feet for the width of the existing grandfathered lot; d. The"maximum height restriction" is 3%x stories, as compared with the existing grandfathered 4-story structure; e. The "minimum front yard setback" is 15 feet, as compared with the existin grandfathered front yard setback of approximately 17 inches; L The "minimum side yard setbacks" are 20 feet, as compared with the existine grandfathered left side yard setback of approximately 3 '/2 feet, and the existing right side yard setback of approximately 14 feet. 19. Thus,the existine lot and structure at the 272 Jefferson Avenue property already exceeds in several material respects the required maximums or minimums permitted in a B-1 Zoning District, both in terms of structure and use, even before taking into account the impact of the multiple Variances and Special Permit for the new residential structure approved by the Salem ZBA in its June 8, 2009 Decision. 20. In 2004 272 Jefferson Avenue, Salem, Massachusetts was owned by Dean Borders (hereinafter"Borders"),which property then consisted of two grand-fathered structures, the existing 4-story structure(then as now in the same location)and a 1'/z-story separate structure located at the right(ie. northwest) rear portion of the property. 21. By Master Deed and Declaration of Trust, both dated October 6, 2004, and recorded at pages 1 and 13 respectively of Book 23489 at the Essex South Registry of Deeds, Borders created"The 272 Jefferson Avenue Condominium Trust"and converted the property into five condominium units, of which units 2-5 inclusive were located on the first, second,third, and fourth floors (respectively) of the 4-story structure, and unit 1 was located in the 1'/z-story separate structure at the right(northwest) rear of the property. 22. Between October 6, 2004 and February 4, 2005 Borders sold each of the four condominiums in the 4-story structure(units 2-5)to separate buyers, and retained ownership of unit 1, ie. the 1%x-story separate structure at the right(northwest) rear of the property. 23. Sometime during the spring or early summer of 2005 Borders or his agents demolished all but two exterior walls of the 1'/2-story structure(unit 1), removing all parts of the building above the foundation except for said two exterior sidewalls. 24. Immediately following said demolition, the Salem Building Inspector issued a Stop Work Order barring any further work at the site. The basis for the Stop Work Order was Borders' failure to secure the necessary permits or zoning approvals prior to undertaking the demolition. - 4 - 25. . Subsequently Borders applied for multiple variances to complete the demolition and to construct a new 1'/2-story dwelling structure, which was ultimately heard by the ZBA at its regularly-scheduled meeting of December 1, 2005. 26. By a vote of 5-0 at its December 1, 2005 meeting, the Salem ZBA granted said variances, subject to 18 express conditions, including Condition 14,which recited in relevant part that the"Petitioner shall initiate the construction within 30 days after this approval becomes legally effective...[and] shall complete the work within five months from the beginning..."Emphasis added. 27. The December 1, 2005 ZBA Decision was recorded at the Essex South Registry of Deeds on January 26, 2006, and thus,the new 1%2-story structure was required to be completed on or before June 26, 2006 pursuant to Condition 14 (alone) of said Decision. 28. However, Borders did not complete the demolition, nor did he commence construction of the new 1'/2-story structure, much less complete the structure within the time frames mandated by the December 1, 2005 ZBA Decision. Instead, nothing was done. 29. By letter dated August 24, 2006 the Salem Building Inspector declared the two walls of the prior l'/2-story structure that remained standing to be "unsafe"pursuant to State Building Code 780 CMR, Section 121 and ordered Borders to "begin to remove the remaining structure within 24 hours of this notice." 30. The remaining two walls of the structure were thereupon demolished, the foundation walls were removed, and the cellar hole was filled in. 31. Since September of 2006 the only building at the 272 Jefferson Avenue property has been the previously existing(and grandfathered)4-story structure. 32. On June 14, 2005 Borders assigned his original mortgage to Investment Capital Commercial Mortgage, LLC to Defendant,United Financial Consultants, LLC ("United"). 33. By letter dated December 8, 2006, the Salem Building Inspector denied Borders' application for a Building Permit to construct the new 1'/2-story building, effectively ruling that the December 1, 2005 ZBA Decision was null and void because"all 18 conditions needed to be met..."and Borders failed"to comply with condition 16, 18, and with the time constraints of condition 14." 34. Due to Borders' default, United initiated foreclosure proceedings, and at the resulting foreclosure sale on August 29, 2007 United purchased unit 1 at public auction for $30,000.00. 35. By petition dated October 24, 2008, United sought multiple variances and a special permit from the Salem ZBA to construct a new 1%2-story structure on a 3'10" raised foundation at the right(northwest) rear of the property. 5 36. The footprint of the proposed new rectangular 1'/rstory structure is 32 feet by 25 feet. 37. According to the certified plot plan filed in support of United's petition,the rear (westerly)exterior wall of the new 1%-story structure is to be located one (1) foot from the rear(westerly) boundary of the property, and the northerly exterior side wall is to be located one(1)foot from the exterior northerly boundary, which boundary is contiguous to the property owned by the Plaintiff, Joshua R. Levesque, at 268 Jefferson Avenue, Salem, Massachusetts, and to the property owned by Plaintiffs, Kevin C. McGrath and Rayleen H. McGrath, at 3 Arthur Street, Salem, Massachusetts. 38. In addition to the already existing grandfathered, non-conforming, 4-story structure and grandfathered uses at the property discussed above, and the variances and special permit applied for,the proposed new 1%z-story structure, when added to the footprint of the existing 4-story structure, violates the 35%"maximum lot coverage by all buildings" restriction pursuant to the B-1 zoning for the property. 39. Hearings were held on United's October 24, 2008 petition on November 19, 2005, March 18, 2009, April 15, 2009, and May 20, 2009. 40. On May 20, 2009, by a vote of 5 to 0,the Salem ZBA granted United its within Variances and Special Permit over the objections of the within plaintiffs. 41. The resulting June 8,2009 Decision of the Salem ZBA incorporating said vote was filed in the office of the Salem City Clerk on the same day. 42. As to each of the following Counts,the Plaintiffs reaffirm, re-allege, and incorporate all of the prior allegations contained in paragraphs 1-41 inclusive above. ARGUMENT COUNTI There are no special conditions and circumstances affecting the parcel which do not generally affect other land or buildings in the same district 43. The 272 Jefferson Avenue property is a flat, rectangular parcel of land which is fifty(50) feet wide (on the street) and one hundred(100) feet deep. 44. Aside from the existing, grandfathered 4-story structure, there have been no other buildings at the site since September of 2006. 45. There are no ledges, cliffs, ravines, swamps, marshy areas, watercourses, or other natural or topographical features that uniquely affect the land or proposed building. - 6 - 46. Indeed, aside from the fact that the existing grandfathered 4-story structure is taller by one or more stories than virtually all of the surrounding properties for a distance of several blocks,there is nothing about the parcel which is unique or indistinguishable from the normal (and natural) conditions of the surrounding land and buildings of the neighborhood as a whole. 47. Thus, the Defendants cannot prove this variance requirement as a matter of law. 48. For the foregoing reasons alone, the ZBA exceeded its authority in granting said Variances and Special Permit and said June 8, 2009 ZBA Decision must be annulled in its entirety. COUNTII Literal enforcement of the provisions of the Salem Zoning Ordinance does not involve legally-recognizable hardship,financial or otherwise, to the Petitioner 49. It is axiomatic under Massachusetts Law that the term"hardship" within the meaning of Chapter 40A does not include any hardship which is self-created. 50. Yet by accepting the assignment of the Borders' mortgage from Commercial Mortgage, LLC on June 14, 2005, by purchasing unit 1 at the August 29, 2007 public auction, by paying$30,000.00 for the then demolished unit 1, and by voluntarily assuming the risk that any future construction of a new structure would not be permitted,United had in fact created its own hardship. 51. Thus the Defendants cannot prove this variance requirement as a matter of law. 52. For the foregoing reasons alone, the ZBA exceeded its authority in granting said Variances and Special Permit and said June 8, 2009 ZBA Decision must be annulled in its entirety. COUNT III The relief granted causes substantial detriment to the public good and nullifies and substantially derogates from the intent and purpose of the Salem Zoning Ordinance 53. Article 1, Section 1-1(a)of the Salem Zoning Ordinance, entitled"Purposes," includes the following explicit Purposes of said Ordinance: "to lessen congestion in the streets, ...to secure safety from fire... and other dangers,... to prevent overcrowding of land,to avoid undue concentration of population, to facilitate adequate provision of transportation,...to conserve the value of land and buildings, to encourage the most appropriate use of land..." - 7 - 54. The Variances and Special Permit granted to United pursuant to the June 8, 2009 Decision of the Salem ZBA are contrary to the above explicit Purposes of the Salem Zoning Ordinance. 55. In addition,the June 8, 2009 ZBA Decision violates Article IV, Section 4-1(2) of the Salem Zoning Ordinance, entitled"Minimum regulations; uniform applicability,"which provides the following in relevant part: (1) No...land shall here-after be used or occupied and no building or structure...shall hereafter be erected, constructed...unless in conformity with all regulations herein specified for the district in which it is located. (2) No building or other structure shall here-after be erected or altered: a. To exceed the height; b. To accommodate or house a greater number of families; c. To occupy a greater percentage of lot area; d. To have narrower or smaller front yards, side yards, rear yards or other open spaces; than herein specified for the district in which it is located or in any other manner contrary to the provisions of this ordinance. Emphasis added. 56. In addition, the June 8, 2009 ZBA Decision violates the residential density requirements found in Table 1 of Article VI, Section 6.4 of the Salem Zoning Ordinance in the following respects: a. The"minimum side yard setbacks" are 20 feet, as compared with the proposed side yard setbacks on the north and westerly sides of the proposed new 1'/2-story structure of one (1) foot; b. The proposed new 1'/z-story structure, when added to the footprint of the existing 4- story, grandfathered structure, violates the 35% "maximum lot coverage by all buildings"restriction pursuant to said Table 1. 57. The foregoing violations are in addition to the multiple non-conforming uses and structure which already exist at the 272 Jefferson Avenue Property, including the following: - 8 - a. The"minimum lot area"is 25,000 square feet, as compared with 5,000 square feet for the existing grandfathered lot; b. The"minimum lot area per dwelling unit" is 3,500 square feet, as compared with the grandfathered 1,250 square feet for each of the existing 4 dwelling units in the existing grandfathered 4-story structure; c. The"minimum lot width"is 100 feet, as compared with 50 feet for the width of the existing grandfathered lot; d. The"maximum height restriction" is 3'/: stories, as compared with the existing grandfathered 4-story structure; e. The"minimum front yard setback" is 15 feet, as compared with the existing grandfathered front yard setback of approximately 17 inches; f. The"minimum side yard setbacks"are 20 feet,as compared with the existing grandfathered left side yard setback of approximately 3'% feet, and the existing right side yard setback of approximately 14 feet. 58. In addition, for the reasons hereinafter set forth in Count IV hereof, the June 8, 2009 ZBA Decision violates Section 5-30) of the Salem Zoning Ordinance,which Section purportedly served as the basis for the illegal Special Permit the ZBA granted United in said Decision. 59. Said Variances and Special Permit do in fact constitute substantial detriment to the public good, not the least because of the increased fire hazard to the neighborhood as a result of the proposed new P/2-story wooden structure being placed so near to the adjacent wooden dwellings in the neighborhood, including those of the Plaintiffs. 60. Similarly, said Variances and Special Permit do in fact nullify and/or substantially derogate from the intent and purposes of the Salem Zoning Ordinance. 61. Thus, the Defendants cannot prove this variance requirement as a matter of law. 62. For the foregoing reasons alone, the ZBA exceeded its authority in granting said Variances and Special Permit and said June 8, 2009 ZBA Decision must be annulled in its entirety. COUNT IV Section 5-30) of the Salem Zoning Ordinance does not apply to the proposed new 1 '/:-story structure - 9 - 63. In its October 28, 2008 Petition to the Salem ZBA, United cited"Section 5-30) of the [Salem] Zoning Ordinance"as its purported basis"to reconstruct a nonconforming structure." 64. Article V, Section 5-30) of the Salem Zoning Ordinance entitled"Extension of nonconformity,"provides the following in its entirety: 0) Notwithstanding anything to the contrary appearing in the ordinance,the board of appeals may, in accordance with the procedures and conditions set forth in section 8-6 and 9-4 herein, grant special permits for alterations and reconstruction of nonconforming structures and for change, enlargement, extension or expansion of nonconforming lots, land, structures and uses,provided, however,that such change,extension, enlargement or expansion shall not be substantially more detrimental than the existing nonconforming use to the neighborhood, nor shall this paragraph apply to billboards, signs or other advertising devices. Emphasis added. 65. Section 8-6 of Article VIII of the Salem Zoning Ordinance, entitled`Board of appeals; granting special permits,"provides the following in relevant part: Notwithstanding anything to the contrary appearing in this ordinance, the board of appeals may grant special permits as authorized by section 5-30)and section 9-4 herein when the same may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent and purpose of this ordinance. Emphasis added. 66. Also, Subsection(a) of Article IX, Section 9-4 of the Salem Zoning Ordinance, entitled "Special permits,"provides the following in relevant part: (a) In hearing and deciding applications for special permits, the board of appeals shall decide such questions as are involved in determining whether such special permit should be granted and...shall deny special permits when not in harmony with the purpose and intent of this ordinance. Emphasis added. 67. For the reasons set forth in Count III hereof,the Special Permit granted United by the ZBA in its June 8, 2009 Decision causes substantial detriment to the public good, - 10 - nullifies and substantially derogates from the intent and purpose of the Salem Zoning Ordinance, and is not in harmony with the purpose and intent of said Ordinance. 68. Thus, for the foregoing reasons, Section 5-30) does not apply, and therefore could not possibly serve as the basis for the Special Permit granted United by the ZBA in its June 8, 2009 Decision. 69. Thus, the Defendants cannot prove this requirement for a special permit as a matter of law. 70. For the foregoing reasons alone, the ZBA exceeded its authority in granting said Special Permit and said June 8, 2009 ZBA Decision must be annulled in its entirety. COUNT V The prior grandfathered non-conforming 1% structure and use at 272 Jefferson Avenue, Salem,Massachusetts has been permanently extinguished 71. Article VIII, Section 8-4(2) of the Salem Zoning Ordinance provides the following in relevant part: Where a structure exists which could not be built under the terms of this ordinance by reason of restrictions on area, lot coverage, height,yard dimensions, or other characteristics of the structure or its location on the lot, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions: (2) Should such structure be destroyed by any means to an extent of more than fifty(50)percent of its replacement cost of more than fifty (50) percent of its floor area at the time of destruction, it shall not be reconstructed except in conformity with the provisions of this ordinance. Emphasis added. 72. The previous 1%z-story grandfathered structure at the right(northwest)rear of the 272 Jefferson Avenue property was completely destroyed in September of 2006, nearly three years earlier, which destruction included the removal of the foundation walls and the filling in of the former cellar hole. 73. Also, under Massachusetts Law, the former nonconforming residential use of said former 1 '/�-story grandfathered structure was extinguished when it was continuously discontinued for two or more years. - 11 - 74. For the reasons set forth in Count IV hereof,the former I%2-story grandfathered nonconforming structure cannot be reconstructed pursuant to a Special Permit. 75. Thus,pursuant to Article VIII, Section 8-4(2) of the Salem Zoning Ordinance, any new construction at the 272 Jefferson Avenue property must conform with the dimensional and use requirements of the Salem Zoning Ordinance,which the proposed 1'/2-story structure approved by the Board in its June 8, 2009 Decision clearly does not do. 76. For the foregoing reasons alone, the ZBA exceeded its authority in granting said Variances and Special Permit and said June 8, 2009 ZBA Decision must be annulled in its entirety. COUNT VI The Plaintiffs are substantially aggrieved by the June 8,2009 ZBA Decision 77. The I %2-story structure approved by the Salem ZBA in its June 8, 2009 Decision represents a substantial detriment to the Plaintiffs, including (without limitation) for the risk of fire, noise, loss of privacy, shadows, inconvenience of maintenance, and diminution in their property values that will be inevitably caused by said structure. 78. In particular,Plaintiff Joshua R. Levesque purchased his property at 268 Jefferson Avenue, Salem, Massachusetts in November of 2007, when there was only an open yard behind the existing 4-story grandfathered structure at the 272 Jefferson Avenue property, and there was then no indication of any attempt by anyone to construct a I%2-story structure at the right(northwest)rear of the property, only one foot from his shared boundary line. 79. Since his purchase of 268 Jefferson Avenue,he has made substantial improvements to his property, and his total investment in said property has now risen to approximately Three Hundred Fifty($350,000.00) Thousand Dollars. 80. In doing so,he has relied on the protections of the Salem Zoning Ordinance to safeguard his foregoing investment and the enjoyment of his property. 81. Plaintiffs Kevin C. McGrath and Rayleen H. McGrath have likewise relied on the Salem Zoning Ordinance to protect their property values and the enjoyment of their property. 82. The Plaintiffs are substantially aggrieved by the June 8, 2009 ZBA Decision. 83. For the foregoing reasons alone,the ZBA exceeded its authority in granting said Variances and Special Permit and said June 8, 2009 ZBA Decision must be annulled in its entirety. RELIEF SOUGHT - 12 - The Plaintiffs respectfully request that this Court: a. enter a Judgment in their favor annulling in full the June 8, 2009 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, Joshua Levesque, et al, By their atto y, June 25, 2009 John 9 No S Salem, MA 01970 978-825-0060 BBO#075281 13 - ONNDI CITY OF SALEM9 MASSACHUSETTS Q BOARD OF APPEAL 120 WASHINGTON STREET, 3RD FLOOR '•' �^ I SALEM, MASSACHUSETTS 01970 TELEPHONE: 978-745-9595 FAX: 978-740-9846 KIMDCRLCY DRISCOLL - 1p09 JJId MAYOR CIO ! +!Cir `• IN Tye®1!L ® June 8, 2009 R9N1�Mp�®Il�iy�l®g®Essex Decision �- JUN 2 6 2868 City of Salem Zoning Board of A p lie:K Petition of UNITED FINANCIAL CONSULTANTS, LLC, seeking Variances from minimum lot area, minimum lot width, and minimum front, side and rear yard setbacks; allowance of two dwelling structures on the lot; and allowance of five (5) parking spaces; and a Special Permit to reconstruct a nonconforming structure, in order to reconstruct a detached unit, previously demolished, as part of a five-unit residential condominium, on the property located at 272 JEFFERSON AVENUE, Salem, MA (Bl zoning district). A public hearing on the above Petition was opened on November 19, 2008 pursuant to Mass General Law Ch. 40A, §§ 11. The meeting was closed on May 20, 2009 with the following Zoning Board of Appeals members present: Robin Stein (Chair), Rebecca Curran, Beth Debski, Richard Dionne, and Jimmy Tsitsinos (alternate). Petitioner seeks Variances pursuant to the Salem Zoning Ordinance, §6-1, Residential Uses, and §64, Table II: Business and Industrial Density Regulations. Petitioner also seeks a Special Permit pursuant to Salem Zoning Ordinance, §5-3 0), Special Permit Uses: Extension of Nonconformity. Statements of fact: 1. In a decision dated December 7, 2005, the Board of Appeals granted the relief needed to allow the reconstruction of a detached unit, previously demolished, as part of a five-unit residential condominium. A Special Permit and Variances were granted with eighteen (18) conditions to the petitioner and owner at the time, Dean Borders. 2. Reconstruction of the unit was never completed, and several of the Board of Appeal's conditions were not met. The Building Commissioner ordered the remainder of the unit, which had been only partially demolished, to be torn down completely. The property was foreclosed on by its mortgager, United Financial Consultants LLC, which then acquired the property from itself at auction. 3. Since the demolition of the detached fifth unit, the owners of the four units in the front building have had difficulty selling and refinancing their units. 2 Additionally, the owners of the four existing units have incurred expenses from higher insurance, required construction of a fence around the demolition site, costs of demolition, and the nonpayment of condominium association fees from the fifth unit for some of the time the unit remained unoccupied. 4. In a petition dated October 28,2008, the current owner and petitioner, United Financial Consultants LLC, requested Variances from minimum lot area, minimum lot width, and minimum front, side and rear yard setbacks; and a Special Permit to reconstruct the unit, which was a nonconforming structure. The Building Commissioner determined that the petitioner also required Variances for the allowance of two dwelling structures on the lot and allowance of five (5) parking spaces, in order to complete the reconstruction. 5. Attorney George Atkins presented the petition on behalf of the United Financial Consultants LLC. A public hearing on the Petition was opened on November 19, 2008, pursuant to Mass General Law Ch. 40A, §§ 11. The hearing was continued to January 21, 2009, February 18, 2009, March 18, 2009, April 15, 2009, and May 20, 2009, when it was closed, with the following Zoning Board of Appeals members present: Robin Stein (Chair), Rebecca Curran, Beth Debski, Richard Dionne, and Jimmy Tsitsinos (alternate). 6. The petitioner submitted revised plans following the hearings on November 19, 2008, March 18, 2009, and April 15, 2009. 7. The original plans submitted showed a reconstructed unit with a different configuration than the original structure in order to create additional space to bring the parking into conformance with zoning; the original plan had not shown sufficient parking area to meet zoning requirements. 8. Opposition to the petition was voiced at the November 19, 2008 meeting. Attorney Anthony Keck, representing the owners of units 2, 4 and 5 of 272 Jefferson Avenue, objected to a plan that used common space of the condominium without the consent of the association. He also raised objections to the design of the unit and the parking configuration. Several other abutters objected to anything being reconstructed in that space and cited concerns about snow storage and aesthetics. 9. Support for the petition was voiced by Colin Martin, the owner of 272 Jefferson Avenue, unit 3, who urged the rapid reconstruction of unit 1 because he had been unable to sell his unit due to the demolition. The Board expressed concern that if they approved the plan before them, the petitioner would not have the legal right to construct it because it used common space belonging to the entire condominium association. Since some of the unit owners objected to the plan, permission to use the common space would likely not be granted and the petitioner would have to come back to the Board with another proposal. The Board asked the petitioner to rethink his proposal. 3 10. Following comment from the public hearing on November 19, 2008, the applicant submitted a revised plan dated March 13, 2009 showing plans for the reconstruction of unit 1 that approximated the original footprint. The applicant appeared before the Board again on April 15, 2009 and presented the revised application. Attorney Atkins stated that negotiations for a buyout plan of unit 1 by the other unit owners had been unsuccessful. 11. At the April 15, 2009 meeting, owners of units 2, 4 and 5 again expressed opposition to the plan, stating they would not oppose reconstruction if it were done in the same footprint as the original, but they felt the proposed building was too large. The owner of unit 3 was not present, and Attorney Keck stated that this unit was in foreclosure. 12. Board members also expressed concern that while the building design was closer to the original than the prior submittal, the dimensions were not exactly the same. Members of the Board expressed that they preferred a design in exactly the same footprint and with the same dimensions as the original. The applicant conceded that some of the calculations of the building's dimensions were incorrect. 13. Following public comments and Board feedback at the April 15, 2009 meeting, the applicant submitted revised plans showing construction of a reproduction of the original building, on what was estimated to be the exact same footprint as the original, with the exception of a one-foot perimeter setback from the property line, where none had originally existed. The petitioner again appeared before the Board at its May 20, 2009 meeting and presented the revised plans. 14. At the May 20, 2009 meeting, opposition was voiced by several abutters who wished to see no rebuilding at all. However, residents of units 2, 4 and 5 of 272 Jefferson Avenue, represented by Attorney Keck, did not oppose the reconstruction as proposed, so long as the petitioner altered the plans to shorten the porch and not block parking areas during construction. 15. At its meeting on May 20, 2009, the Board of Appeals voted five (5) in favor and none (0) opposed to grant the Variances and Special Permit required to allow the reconstruction of unit 1 as proposed in the revised plan dated May 12, 2009 prepared by Winter Street Architects, Inc. 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: 1. Special conditions and circumstances exist affecting the parcel or building, which do not generally affect other land or buildings in the same district; 2. Literal enforcement of the provisions of this ordinance would involve substantial hardship, financial or otherwise, to the appellant; I 4 3. Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the zoning ordinance, since the proposed plan is a reconstruction of a building that existed previously; 4. The applicant may vary the terms of the Residential One-Family District to construct the proposed development, which is consistent with the intent and purpose of the City of Salem Zoning Ordinance; 5. In permitting such change, the Board of Appeals requires certain appropriate conditions and safeguards as noted below. On the basis of the above findings of fact and all evidence presented at the public hearing including, but not limited to, the Plans, Documents and testimony, the Zoning Board of Appeals concludes: 1. To allow for the reconstruction of the condominium unit as proposed, the requested Variances from dimensional, density and parking requirements are granted. 2. To allow for the reconstruction of a structure with a nonconforming use, the requested Special Permit is granted. In consideration of the above, the Salem Board of Appeals voted, five (5) in favor (Curran, Stein, Tsitsmos, Debski and Dionne) and none (0) opposed, to grant petitioner's requests for a Variance and 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. 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 the new construction shall be in harmony with the existing structure. 6. A Certificate of Occupancy is to be obtained. 7. A Certificate of Inspection is to be obtained. S. Petitioner shall obtain street numbering from the City of Salem Assessor's Office and shall display said numbers so as to be visible from the street. l Q 5 9. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but not limited to the Planning Board. 10. Construction vehicles cannot be parked permanently on the site. 11. No dumpster on the site may block parking at any time. 12. Any common areas of the condominium—including the fence—that sustains any damage shall be restored to its original condition. Robin Stein, Chair ' 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 has been filed with the Essex South Registry of Deeds. AT COPY A T CLE LEM, MA38. Cilp of *alem, fdazoarbu! C4TY OF SALEM. MA CLERK'S OFFICE �oarb of appeal 1001 MAY 24 P 2' CS DECISION OF THE PETITION OF NIKOLANOS KARAMELOS REQUESTING A VARIANCE FOR THE PROPERTY LOCATED AT 271 JEFFERSON AVENUE A hearing on this petition was held May 16, 2001 with the following Board Members present: Nina Cohen, Chairman, Richard Dionne, Stephen Buczko and Stephen Harris. Notice of the hearing was sent to abutters and others and notices of the hearing were piupcii) pub�ishtBG II lI",E ;,E.iell LVcrill is Nlewc Ir. Lcco1d8fIGC Vdd� iV�coChU�C'liE General Laws Chapter 40A. The petitioner is requesting Variances from density regulations to create additional living units for the property located at 271 Jefferson Avenue in a B-1 zone. The Variances, which have been requested, may be granted upon a finding by this 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 and structure involve. b. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship, financial or otherwise, to the petitioners. 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 of 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. Petitioner, represented by Stephen P. Lovely, Esq., seeks a variance to convert into two residential apartments a former storefront on the first floor.of is building at 271 Jefferson Avenue. Adequate offstreet parking for the proposed units exists at the rear of the property, accessed from Lawrence Ave. Petitioner indicated that he is in the process of installing an automatic sprinkler system in the building as required by local fire regulations. 2. These apartment units are presently occupied in the 3-story building, which is located in the B-1 district. In this district, specified commercial uses are allowed by special permit. In 1996 this building was granted a variance allowing mixed use of the premises, permitting a pet supply retailer to occupy the street level premises. This retailer has since gone out of business. DECISION OF THE PETITION OF NIKOLANOS KARAMELOS KARAMELOS REQUESTING A VARIANCE FOR THE PROPERTY LOCATED AT 271 JEFFERSON AVENUE page two 3. At all the public hearing, petitioner presented a petition signed by 43 neighbors, requesting that the Zoning Board grant the petition for additional living units. Three neighbors wrote letters expressing support for the residential use of the former commercial space. 4. There was also considerable opposition to the proposed additional units. -Opponents — arcued that allowing 3 more units would greatly increase the building occupancy because of the likelihood thai the unlis woulc of eniec tc c.elen'� Slate students who have a tendency to invite others to share their living space. Opponents stressed the difficulties created by increased density, noting that residents of the surrounding multifamily houses frequently have difficulty parking vehicles on the street. 5. Paul Biscaya of 267 Jefferson Ave stated that while Mr. Karamelos has been responsible for some improvements to the building, it does not present the appearance of a well-kept residential property. He pointed out boarded and broken windows on the sides, and requested that the commercial signage and overhanging roof be removed from the Jefferson Ave. facade. 6. Several neighbors objected to allowing increased density at the side in light of the existing congestion in the neighborhood. These were Yvonne and Tony Lysak of 258 Jefferson Ave., Lorraine Malionek of 259 Jefferson, Carol Hunt of 751h Lawrence St., and Steven Levaro of 46 Lawrence Street. 7. Mr. Tom Furey, City Councillor, of 21 Barstow Street opposed allowing more than 4 or 5 units, basing his view of the difficulties of upkeep and management presented by larger multifamily dwellings in congested neighborhoods. He stated that overuse of a property can have a ripple effect, causing difficulties throughout the section. He stated that he spoke also for his colleague Laura DeToma, who was unable to attend —the meeting but who opposed the granting of.a variance for 6 units. On the basis of the above findings of fact, and on, the evidence presented at the hearing, the Zoning Board of Appeal concludes as follows 1. Special conditions exist which especially affect the subject property but not the district in general. 2. Literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship to the petitioner. 3. Desirable relief can 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. Therefore,the Zoning Board of Appeal voted 5-0, to grant the Variances requested, subject to the following conditions; DECISION OF THE PETITION OF NIKOLANOS KARAMELOS REQUESTING A VARIANCE FOR THE PROPERTY LOCATED AT 271 JEFFERSON AVENUE page three 1. Petitioner shall comply with all city and state statures, ordinances, codes and regulations. 2. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly adhered to. 3. All construction shall be done as per the plans and dimensions submitted. 4. Petitioner shall obtain a building permit prior to beginning any construction. 5. A Certificate of Occupancy shall be obtained. 6. Exterior finishes of the new construction shall be in harmony with the existing construction. 7. Remove commercial signs and remove overhang. 8. Petitioner shall install new residential windows. 9. Apartments shall be no more than 5 bedrooms in total. 10. Sprinkler system shall be installed. Variance Granted May 16, 2001 Nina Cohen, Chairman Board of Appeal • DECISION OF THE PETITION NIKOLANOS KARAMELOS REQUESTING A VARIANCE FOR THE PROPERTY LOCATED AT 271 JEFFERSON AVENUE pagefour 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 Wing of IN- aeasion in the ollice 01 the Giry Cle�l. 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 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 is 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 Certificate No: 963-2001 Building Permit No.: 963-2001 Commonwealth of Massachusetts City of Salem Building Electrical Mechanical Permits This is to Certify that the RESIDENCE located at Dwelling Type 0271 JEFFERSON AVENUE in the CITY OF SALEM Address ........T... C-ityNa_.me_... - --- - - own/WCit IS HEREBY GRANTED A PERMANENT CERTIFICATE OF OCCUPANCY Three residential apartment units @ 271 Jefferson Avenue This permit is granted in conformity with the Statutes and ordinances relating thereto, and expires unless sooner suspended or revoked. Expiration Date .--_-------------------------------- Issued On: Mon Nov 3, 2003 GeoTMS02003 Des Lauriers Municipal Solutions,Inc. ------------------------------------------------------------------------------- Certificate No: 963-2001 Building Permit No.: 963-2001 Commonwealth of Massachusetts City of Salem Building Electrical Mechanical Permits This is to Certify that the RESIDENCE located at .._. ---------------------- ............ ._._-`-. Dwelling Type 0271 JEFFERSON AVENUE in the CITY OF SALEM - - - - ------------- _.. .....__...-.. - - - -- - Address Town/City Name IS HEREBY GRANTED A PERMANENT CERTIFICATE OF OCCUPANCY Three residential apartment units @ 271 Jefferson Avenue This permit is granted in conformity with the Statutes and ordinances relating thereto,and expires unless sooner suspended or revoked. Expiration Date Issued On: Mon Nov 3, 2003 - -- -- ----- ----------............... -----..- GeoTMS®2003 Des Lauriers Municipal Solutions,Inc. --------------------------------------------------------------------------- Certificate No: 963-2001 Building Permit No.: 963-2001 Commonwealth of Massachusetts City of Salem Building Electrical Mechanical Permits This is to Certify that the RESIDENCE located at Dwelling Type 0271 JEFFERSON AVENUE in the CITY OF SALEM - - - ------ ....... . ......... .. Address Town/City Name IS HEREBY GRANTED A PERMANENT CERTIFICATE OF OCCUPANCY Three residential apartment units @ 271 Jefferson Avenue This permit is granted in conformity with the Statutes and ordinances relating thereto, and expires unless sooner suspended or revoked. Expiration Date Issued On: Mon Nov 3, 2003 - - GeoTMS®2003 Des Lauriers Municipal Solutions,Inc. """""""""'-"""""-""------------""----- -"'-------------' Certificate No: 963-2001 Building Permit No.: 963-2001 Commonwealth of Massachusetts City of Salem Building Electrical Mechanical Permits This is to Certify that the RESIDENCE located at Dwelling Type 0271 JEFFERSON AVENUE in the CITY OF SALEM _............ ---------------------------------------------------------- ........ .......... - - - - Address Town/CityYName IS HEREBY GRANTED A PERMANENT CERTIFICATE OF OCCUPANCY Three residential apartment units @ 271 Jefferson Avenue This permit is granted in conformity with the Statutes and ordinances relating thereto, and expires unless sooner suspended or revoked. Expiration Date Issued On: Mon Nov 3, 2003 -' --- --------- GeoTMS®200 Des Launers Municipal Solutions,Inc. ------------------------------------------------------------------------.--.. 0271 JEFFERSON AVENUE 963-2001 GIs#: 1057 COMMONWEALTH OF MASSACHUSETTS Map: 23 , Block: CITY OF SALEM Lot: 0096-201 Permit: Building Category: 434 Residential:additi BUILDING PERMIT Permit# 963-2001 Project# JS-2001-.1850 � W Est:. Cost: $160,000.00 , Fee: $605.00, PERMISSION IS HEREBY GRANTED TO Const.Class: Contractor: �., n License: `•°<- Use Group: John SilviaGeneral Contractor Salet #1903 Lot Size(sq. ft.): 11550 Owner. 271 JEFFERSON AVENUE TRUST Zoning: = BI -mss "... Applicant: John Silvia - - Units Gained: Units Lost: AT. 0271 JEFFERSON AVENUE ISSUED ON: 27-Jun-2001 EXPIRES ON: 27-D,V2001 TO PERFORM THE FOLLOWING WORK: #� Converting commercial space into 2 apartment units per Board of Appeal approval. Plans submitted. T.J.S. � POST THIS CARD SO IT IS'VISIBLE FROM THE STREET Inspect Plumbing Inspector of Wiring D.P.W. inspector of Buildings 4ndet/ Service: Meter: Footh+gs: / Foundation:Rough: /� � House# Rough Framerinal�O `fQ Fireplace/ChimneT.03 Insulation: as Fire Department Beard of Icalth Final; © /0/ I) /IO4 Ro Oil: Treasury: _p� Smoke: I Excavation: T PERMIT MAY BE REVOKED BY THE CPI'Y OF SALEMN VIOLATION°O M ITS RULES AND REGULATIONS. /tom Signature: ✓` Fee Type: Receipt No: _Date Paid: Check No: Amount: BUILDING REC-200 1-002039: 21-.Tun-01 1136 $605.00 p t .1 a +" —,VS®2001 Des Lauriers Municipal Solutions,Inc. , q 9. V ` e h i 1 h waivs 40 AID 6 pr MOM 0 :m ti JOEA SITE COPY ,r BUILDING �v CITY OF SALEM n `mss`. SALEM, MASSACHUSETTS 0197 PERMIT DATE AN IARY 19 98 PERMIT NO. 39-1998 APPLICANT ARTHUR nRnllrAR ADDRESS.Q, (STREET nC] WI RnAn 1610 (CONTE'S LICENSE) CITY. PEAHonY STATE SIA_ZIPCODE 01960 TEL.NO. 978—SRF-2129 r • ` !I� NUMBEROF PERMITTO ALTERATION O STORY •TWO nR MnRF FAMII Y DWELLING UNITS 4 - (TYPE OFIMPROVEMENT)/ NO. - (PROPOSED USE) AT(LOCATION) 0JEFFERSON AVENUE DISTRICT BI (NO)NOT ZONING (STREET) ' BETWEEN AND (CROSS STREET) (CROSS STREET) LOT SUBDIVISION MAP 23 LOT9109Fj BLOCK X02 SIZE 001 15-90 SO FT 1 BUILDING IS TO BE FT.WIDE BY FT.LONG BY FT.IN HEIGHT AND SHALL CONFORM IN CONSTRUCTION TO TYPE USEGROUP BASEMENT WALLS OR FOUNDATION '(TYPE) REMARKS: FXTFNTION nF FOURTH. UNIT PER PI ANSI $IIAMTTTFn I _ r T AREA OR Call for P( ,'�1ar � (�Q1p>,! PERMIT @ VOLUME STIMARC-D PST.�y•U S�.i LJ �+1 1_ OIC 010101 FEE $ F.5_ 00 (CUBIGSOUARE FEET) OWNER. RI IRT KARAMAFI AR NT.kni AnS Tp p BUILDING DEPT. ADDRESS W PFARnnY MA 01 qF M BY 1 THIS PERMIT CONVEYS NO RIGHT TO OCCUPY ANY STREET,ALLEY OR SIDEWALK OR ANY PART THEREOF,EITHER TEMPORARILY OR PERMANENTLY,ENCROAID MAENTS --® 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 LUMBING SPECTIONAPPROYALS ELECTRICAL INSPECTION APPROVALS - �-.�'"•'.:.rte �/v �/i� 1 �y� 1 ( � '" �`�/��(�j 01 BOARD EALTH GAS INSPECTION APPROVALS FIRE DEPT.INSPECTING APPROVALS OTHER CITY ENGINEER V It WORK SHALL NOT PROCEED UNTIL THE PERMIT WILL BECOME NULL AND VOID IF CONSTRUCTION WORK IS INSPECTIONS INDICATED ON THIS CARD INSPECTOR HAS APPROVED THE VARIOUS NOT STARTED WITHIN SIX MONTHS OF DATE THE PERMIT S ISSUED CAN BE ARRANGED FOR BY TELEPHONE STAGES OF CONSTRUCTION. AS NOTED ABOVE. OR WRITTEN NOTIFICATION. �ON.1 CITY OF SALEM9 MASSACHUSETTS PUBLIC PROPERTY DEPARTMENT n m 120 WASHINGTON STREET, 3RD FLOOR 3 j SALEM, MASSACHUSETTS 01970 TELEPHONE: 978-745-9595 EXT. 380 aINV—' FAX: 978-740-9846 KIMBERLEY DRISCOLL MAYOR August 24, 2006 Dean Borders 34 Wadsworth Street Danvers, Ma. 01923 RE: 272 Jefferson Avenue Dear Mr. Borders: The Salem Zoning Board of Appeals is planning to discuss under Old Business, this Board's decision dated December 1, 2006. This discussion will be during the regular meeting on October 18, 2006. Your attendance is encouraged. If you have any questions, please contact me directly. Sincerely, St. Pier Building Commissioner Zoning Enforcement Officer cc: Nina Cohen, Chairman ZBA Attorney Jerry Perrisala Attorney Stephen Lovely 272 Condo Jefferson Ave Association Job# 1-046 McBrie, LLC CONSULTING ENGINEERS 3 Grandview Avenue Phone 978-532-7097 Peabody, MA 01960-3127 . Fax: 978-532-7097 E-mail: McBrieLLC@aol.com Cell: 978-835-5816 December 13, 2001 Mr. Nick Karambelas 54 Paul Avenue Peabody, MA 01960 FirstFtoor-Relleva � 271 Jefferson Avenue 9 970 McBrie, LLC Job#1-046 Dear Mr. Karambelas: The installation of some of the steel members was slightly different then shown on S1 dated 10/18/01 due to field conditions. However, the intent of the drawings was followed. Therefore, based upon my inspection on 12/13/01, the structural steel and LVLs were installed in accordance to the contract documents. If additional information is required lease do not hesitate to contact our office. H OF MgSS s� S Sincerely, MICHAEL L. S PERHAM STRUCTURAL u 9 No.41143 a• 90F FGISTEQ'� �4�' Michael Perham, PE sss�oNAt EaG� Managing Member 1 046 12 13 01 Page 1 of 1 No. City of Salem Ward X APPLICATION FOR PERMIT TO BUILD ADDITION, MAKE ALTERATIONS OR NEW CONSTRUCTION IMPORTANT-Applicant to complete all items in sections:1, ll, /it, IV,and IX. I. AT(LOCATION) L� 17L DSTRIC LOCATION /(,N�/07�)- (STREET) OF BETWEEN gp- D )')—, AND 1t C V LJ BUILDING (CROs STREET (CROs LOTET) SUBDIVISION LOT BLOCK SIZE 11. TYPE AND COST OF BUILDING •All applicants complete Parts A -D A. TYPE OF IMPROVEMENT D. PROPOSED USE-FOR"DEMOLITION'USE MOST RECENT USE 1 ❑ New building Residential Nonresidential 2 ❑ Addition(If residential,enter number of new 12 ❑ One family 18 ❑ Amusement,recreational Musing units added,it any,in part D,13) 19 ❑ Chruch,other religious 13 ❑ Two or more family-Enter number 3 Alteration(See 2 above) of units....................................................... 20 ❑ Industrial 21 ❑ Parking garage 4 ❑ Repair replacement 14 ❑ Transient hotel,motel,or dormitory- 22 ❑ Service station,repair garage Enter number of units 5 ❑ Wrecking(If muflitamily residential,enter number ❑ 23 ❑ Hospital,institutional of units in building in Part D,13) 15 Garage 24 ❑ Office,bank,professional 6 ❑ Moving(relocation) 16 ❑ Carport 25 ❑ Public utility 7 ❑ Foundation only 26 ❑ School,library,other educational 17 ❑ Other-Specify 27Z Stores,mercantile B.OWNERSHIP 28 ❑ Tanks,towers 8Private(individual,corporation,nonprofit institution,etc.) 29 ❑ Other-Specify 9 ❑ Public(Federal,State,or local government C.COST (Omit cents) Nonresidential-Describe in detail proposed use of buildings,e.g.,food processing plant, machine shop,laundry building at hospital,elementary school,secondary school,college, parochial school,parking garage for department store,rental office building,office building 10. Cost of improvement ......................................................... $ U at industrial plant If use of existing building is being changed,enter proposed use. �To be installed but not included inthe above cost aElectrical........................................................................... b. Plumbing......................................................................... . /A� c. Heating,air Conditioning............................................. 1N . d. Other(elevator.etc.)..................................................... 11. TOTAL COST OF IMPROVEMENT $ 1� III. SELECTED CHARACTERISTICS OF BUILDING -For new buildings and additions,complete Parts E-L;demolition, complete only Parts J&M, all others skip to IV E. PRINCIPAL TYPE OF FRAME F. PRINCIPAL TYPE OF HEATING FUEL G. TYPE OF SEWAGE DISPOSAL I. TYPE OF MECHANICAL 30 ❑ Masonry(wall bearing) 35 ❑ Gas 40 ❑ Public or private company Will there be central air 31 ❑ Wood frame 36 ❑ Oil 41 ❑ Private(septic tank,etc.) conditioning? 32 ❑ Structural steel 37 ❑ Electricity 44 ❑ Yes 45 ❑ No 33 ❑ Reinforced concrete 38 ❑ Coal H. TYPE OF WATER SUPPLY Will there by an elevator? 34 ❑ Other-Specify 39 ❑ Other-Specify 42 ❑ Public or private company 46 ❑ Yes 47 ❑ No 43 ❑ Private(well,cistern) J.DIMENSIONS M. DEMOLITION OF STRUCTURES: 48. Number of stories ............................................................ 49. Total square feet of floor area, pp Has Approval all floors,based on exterior oval from Historical Commission been received dimensions ......................................................................... for any structure over fifty(50)years? Yes_ No 50. Total land area,sq.n_..................................................... Dig Safe Number K.NUMBER OF OFF-STREET PARKING SPACES Pest Control: 51. Enclosed .............................................. sz. omdoors............................................_.............................. HAVE THE FOLLOWING UTILITIES BEEN DISCONNECTED?Yes No L RESIDENTIAL BUILDINGS ONLY Water: 53. Enclosed.................................................... Electric: Gas: Full........................................... Sewer: 54. Number of bathrooms DOCUMENTATION FOR THE ABOVE MUST BE ATTACHED Partial..................................-- BEFORE A PERMIT CAN BE ISSUED. IV. COMPLETE THE FOLLOWING: Historic District? Yes_ No-X (If yes, please enclose documentation from Hist. Com.) Conservation Area? Yes_ NO-4 (If yes, please enclose Order of Conditions) Has Fire Prevention approved and stamped plans or applications? Yes_ NrD�— Is property located in the S.R.A. district? Yes_ NOX Comply with Zoning? Yes_x No (If no,enclose Board of Appeal decision) Is lot grandfathered? Yes_ No (If yes,submit documentation/if no,submit Board of Appeal decision) If new construction, has the proper Routing Slip been enclosed? Yes_ No Is Architectural Access Board approval required? Yes_ No (If yes,submit documentation) Massachusetts State Contractor License # Salem License # Home Improvement Contractor# Homeowners Exempt form (if applicable) Yes_ No_ CONSTRUCTION TO BE COMMENCED WITHIN SIX (6) MONTHS OF ISSUANCE OF BUILDING PERMIT If an extension is necessary, please submit CONSTRUCTION IS TO BE COMPLETED BY: in writing to the Inspector of Buildings. V. IDENTIFICATION • To be completed by all applicants Name Mailing address-Number,street,city,and state ZIP Code Tel.No. ej'Fey cL ,tale Owner or 14s-f7l Lessee 2, Contractor Builders License No. No. 3. Architect or Engineer 1 hereby certify that the propos is authorized by the owner of record and that I have been authorized by the owner to make this application as his authorized age ear to c to all applicable laws of this jurisdiction. Signature of a 'cant Address App' ti date "7/ 1„ USA Z /U 1 � DO NOT WRITE BELOW THIS LINE VI. VALIDATION Building � �� - FOR DEPARTMENT USE ONLY Permit number 7 Building Use Group Permit issued a 19 Fire Grading Building v Permit Fee $ �Y C CJ=s Live Loading Certificate of Occupancy $ Approved by: occupancy Load Drain Tile $ Plan Review Fee $ w TITLE NOTES AND Data •(For department use) r W I C Z -ec- �,U e io- w '-2 PERMIT TO BE MAILED TO: Mtr-14 IA— DATE MAILED: —� Construction to be started by: Completed by: VI ZONING PLAN EXAMINERS NOTES DISTRICT USE FRONT YARD SIDE YARD SIDE YARD - REAR YARD NOTES SITE OR PLOT PLAN •For Applicant Use �x1YrIWG ccxlart� ,�,; � � O Court s y� s 1 Y _ SEP f�iitu ofttlPm, � 2285cIL�TUSPt#S 1 d? ;;J ' -6nura of C�u{rezzl ori .` SS DECISION ON THE PETITION OF KICOLAOS KARAMBELAS P.EQUEST:SG A VARIANCE FOR THE ?ROPERTY LOCATED AT 271 JEFFERSON AVENUE �B-1 ) A hearing on this petition was held September 20, 1995 with the following Board Members present: Stephen Touchette, Chairman; Gary Barrett, Nina Cohen, Albert Hill and Associate Members Joseph Ywuc 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, located at 271 Jefferson Avenue, is requesting a Variance to non conforming structure to add two, five room apartments. The Variance which has 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, makes the following findings of facts: 1. Petitioner's property consists of a three story house containing two residential apartments and a retail store of over 3,000 sq. ft. of unimproved land with frontage on Lawrence Street. 2. Petitioner seeks to enlarge his property by adding an additional story, and two additional apartment units, without changing the footprint of the existing structure. Petitioner proposed to pave the rear lot to provide parking spaces for each of the residential units in the building. 3. John Donahue, City Councillor for Ward 3 appeared and stated his opposition to the proposed variance, stating that the increased density would adversely affect the neighboring properties and would worsen the congestion of a densely populated area. 4. A letter from abutter Paul Biscaia was submitted by his mother, describing the effect the proposed addition would have on the privacy and the sunlight of the adjacent home at 267 Jefferson Avenue. He and his mother opposed the granting of the variance. DECISION OF THE D;--,7 \, 3:_COL.:OS WARAMBELAS BEQUESTl*:G =. ARIANCE FOR THE PROPERTY LOCATED AT 271 JEFFERSON AVENUE (B-1 ; Page two Opposition to the proposed addition was also voiced by the following neighbors, on the grounds that the additional units would increase the congestion. noise, and parking problems already present in the neighborhood. George & Judy Jetter 272 Jefferson Avenue Denise Bradstreet 263 Jefferson Avenue Celia Yerminy 264 Jefferson Avenue Kenneth Gagnon 75 1/2 Lawrence Street On the basic of the above findings of fact, and on the evidence presented at the hearings , 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 Board of Appeal voted unanimously, 0-5 in opposition to the motion to grant the Variance, having failed to garner the required votes to pass, the motion is defeated and the petition is denied. Variance Denied ��/yz �C yL e1Sr) September 20, 1995 Nina Cohen 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 of Special Permit granted herein shall not take effect until a copy of the decision bearing the certification of the City Clerk that20 days have elapsed and no appeal has been filed, or that, if such appeal has been filed, that is 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. C1 N _ m N �G1 N? N CD O _-S m �cn ;n c.o N f.fl %'����� } DECISION ON Til E PETITION OF JAMES AR.STP.ONG d/b/a ARMSTRONG ANIMALS REQUESTING A VARIANCE FOR 271 JEFFFdSON AVENUE A hearing on this Petition was field on September 1, 1982 with the following Board Members present: Douglas Hopper, Chairman, Mv;;Fx. Hacker, LaBrecqu-n, Feeherry and Associate Eember Luzinski. IT,bViNs of the hearing were sent to abutters and others and a notice of the hearing was published in the Salem Evening News in accordance with Massachusetts Ceneral Laws Chapter 40A. The Petitioner has regcested a variance for the property at 271 Jefferson Avenue to allow him to use the property as a pet shop. A variance is required because the building is in an B-1 district where the proposed is apparently not permitted without a variance. The Board of Appeal, after consideration of the evidence presented at the public hearing and after viewing the property makes the following findings of fact: 1) The property in question is in an B-1 zoning district which allows retail stores generally.. However, no specific mention is made of pet stores. 2) Petitioner' s business will cause fewer parking and traffic problems in the area than would numerous other retail operations that would be permitted us a matter, of right. On the basis of the above findings of fact, and the evidence presented at the public hearing; tha Board of Appeal concludes as follows: 1) The prop>_rty in question is unique because of its past use as a market and beca.:se of its location within what is otherwise a residential area. 2) The conditions described above especially affect the structure in question but do not generally affect the zoning district in which the building in located. 3) The conditions described above which affect the land in question, but not the zoning district generally cause a special hardship to the Petitioner. 4) The desired variance may be granted without substantial detriment to the public good by virtue of the restrictions placed on the variance. t PETITION OF JAMES AICIS'iRONG d/b/a ARMSTRONG ANJMAL REQUESTING A VARIANCE FOR 271 JEFFERSON AVENUE Page 2 September 1, 1982 Therefore, the Board of Zoning; Appeal unanimously voted in favor of granting the requested relief. The Board grants a variance to the Petitioner on the following terms and conditions: 1) Petitioner may operate a pet store on the first floor of the premises. hours of operation will be 10 a.m. to 8 p.m. Monday- Saturday, 1 p.m. to 6 p.m. Sunday. 2) The_:- will be no boarding of animals at the site (other than the anival- `c. sale) . 3) There will be no exterior runs or exterior cages at the site. 4) No refuse from the shop will be stored outside. 5) The area in the store to be used for the sale of canines will be soundproofed to the satisfaction of the building inspector. 6) A Certificate of Occupancy shall be obtained prior to commencing operation. 7) 7t .,nceases to reside at the property, this variance ..ha - -_ aLS. homy M. 4F eherry, 'Secretary . 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