8 ALMEDA STREET - ZBA 8 Almeda Street (R-1 )
Thomas Maribito/David
Tremblay (Petitioners)
Mario DiVirgilio (owner)
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_ Poxrb of Appeal
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July 15 , 1986
Notice is hereby given that as of July 8 , 1986 the
decision of the Board of Appeal has been filed in
the office of the City Clerk to grant the petition
of Thomas Maribito & David Tremblay for Variance from
frontage to allow parcel of land at 8 Almeda St . to
be divided into to lots , 48 & 49 and to construct a
single family dwelling on each lot .
BOARD OF APPEAL
Brenda M . Sumrall
Clerk
APPEAL FROM THIS DECISION, IF ANY, SHALL BE MADE PURSUANT TO SECTION 17 OF THE MASS.
GENERAL LAWS, CHAPTER 808, AND SHALL BE FILED WITHIN 20 DAYS AFTER THE DATE OF FILING
OF THIS DECISION IN THE OFFICE OF THE CITY CLERK.
PURSANT TO MASS. GENERAL LAWS, CHAPTER 808, SECTION 11, THE VARIANCE OR SPECIAL PERMIT
GRANTED HEREIN, SHALL NOT TAKE EFFECT UNTIL A COPY OF THE DECISION, BEARING THE CERT-
FICATION OF THE CITY CLERK THAT 20 DAYS HAVE ELAPSED AND NO APPEAL HAS BEEN FILED,
OR THAT, IF SUCH AN APPEAL HAS BEEN FILE, THAT IT HAS BEEN DISMISSED OR DENIED IS
RECORDED IN THE SOUTH ESSEX REGISTRY OF DEEDS AND INDEXED UNDER THE NAME OF THE OWNER
OF RECORD OR IS RECORDED AND NOTED ON THE OWNER'S CERTIFICATE OF TITLE.
BOARD OF APPEAL
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DECISION ON THE PETITION OF THOMAS MARIBITO & DAVID TREMBLAY
FOR VARIANCE AT LOTS 48 & 49 ALMEDA ST. (R-1 )
A hearing on this petition was held June 18, 1986 J%th&h4ifoklNPS Board Members
present: Edward Luzinski, Vice Chairman; Richard Bencal, Secretary; Messrs. Fleming
and Strout. Notice of the hearing was sent to ab1*k#s and others and notices of
the hearing were properly published in the Salem Evening News in accordance with
Massachusetts General Laws Chapter 40A. CITY f.L. `'. f EM.MASS.
Petitioners are requesting a Variance from frontage requirements to divide a parcel
into two lots, and to construct a single family dwelling each lot at Lots 48 & 49
" ATmeda St. , which is located in an R-1 district. --Property is currently.owned by
Mario DiVirgilio.
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 and structures in the same district;
b. literal enforcement of the provisionof the Zoning Ordinance would involve
` substantial hardship, financial or otherwise, to the petitioner; and
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 and after viewing the plans, makes the following findings of fact:
1 . Neighborhood opposition to the plan was answered at the hearing;
2. The size of the two lots would be larger than required under
present zoning;
3. The lots in question are currently vacant;
4. The lots are near a wetlands area and this plan is the only one
feasible without infringing upon the wetlands.
On the basis of the above findings of fact, and on the evidence presented at the
hearing, the Board of Appeal concludes as follows:
1 . Special conditions exist which affect the parcels in question but do not
generally affect other lands, buildings or structures in the same district;
2. The relief requested 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.
DECISION ON THE PETITION OF THOMAS MARIBITO & DAVID TREMBLAY
FOR VARIANCE AT LOTS 48 & 49 ALN;EDA ST. , SALEM
page two
Therefore, the Zoning Board of Appeal voted 4-0, to grant the Variance requested,
subject to the following conditions:
1 . Any blasting on site be done with the approval of the Salem Fire
Department and in accordance with existing City regulations;
2. That a driveway thirty five (35) feet wide be built from Almeda
Street to lots 48 & 49• Said driveway to be built to accomodate
Salem Fire Department equipment and be maintained by both lot owners.
Said driveway shall also be a right of way for the lot shown as lot
two (2) on the plans submitted to the Board;
3. Proper street numbering be obtained by the City Assessor;
4: A Certificate of Occupancy be obtained for each dwelling.
VARIANCE GRANTED
Richard A. Bencal, Secretary
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLER7
APPEAL FROM THIS DECISION, IF ANY. SHALL BE MADE PURSUANT TO SECTION 17 OF THE r:.3s.
WITHIN AFTER THE DATE 0
F Fi
HnP![^n 808. AND SHALL BE FILED 1JITHIN 20 DAYS A E ,
GENERAL LAWS, C ,
OF THIS DECISION IN THE OFFICE OF THE CITY CLERK.
PURSANT TO (LASS. GENERAL LAWS, CHAPTER SCS. SECTION 11, THE VARIANCE OR SPEid=L
CRANTED HEREIN, SHALL NOT TAKE EFFECT UNTIL A COPY OF THEDECISICN, BEA":N; `
FICATION OF THE CITY CLERK THAT 20 DAYS HAVE ELAPSED AND NO APPEAL HAS BEE:J l'
OR THAT, IF SUCH AN APPEAL HAS BEEN FILE, THAT IT HAS BEEN DIS.d ISSED OR DE:'.E '
RECORDED IN THE SOUTH ESSEX REGISTRY OF DEEDS AND INDEXED UNDER, THE NAY,(E C:F Jr'iER
OF RECORD OR IS RECORDED AND NOTED ON THE OWNER'S CERTIFICATE OF TITLE.
BOARD OF APPEAL
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Pourb of 'tAppettl Oct ? S ht IIM #8;
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DECISION ON THE PETITION OF THOMAS MARIBITO & DAVID TREMBLAY CITY CL n;
FOR A VARIANCE AT LOTS 48 & 40 ALMEDA ST. (R-1 ) " ''k�S�.
A hearing on this petition was held on September 22, 1086 with the following Board
Members present: James Hacker, Chairman; Richard Bencal, Secretary, Messrs. ,
Luzinski, Strout and Fleming. 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 request a Variance from frontage, specifically 20 foot frontage for
Lot f2 to allow the property to be divided and to construct a single family dwelling
on Lots 48 & 49 Almeda St. in this R-1 district.
The Variance whidh has been requested may be graned 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 and 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; and
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 hearing the evidence presented at the hearing and after
viewing the plans, makes the following findings of fact:
1 . Support of the plan was voiced by neighbors, abutters and others;
2. Almeda Street as it now is planned will end just in front of the
subject property;
3. The plan, as now presented is the best plan available that will
meet the needs of the petitioners and the concerns of various
City Boards;
4. The size and location of the lots make this the only practical
plan for the subject property.
On the basis of the above findings of fact, and on the evidence presented at the
hearing, the Board of Appeal concludes as follows:
-- I . Special conditions exist which especially affect the land involved
but do not affect other lands in the same district;
2. Literal enforcement of the provisions of the Ordinance would involve
substantial hardship to the petitioner;
DECISION ON THE PETITION OF THOMAS MARIBITO & DAVID TREI,BLAY
FOR VARIANCE FOR LOTS 48 & 49 AUIEDA ST. , SALEM
page two
3. The relief requested 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 unanimously, 5-0, to grant the variance
requested, subject to the following conditions:
1 . Any on site blasting be done with the approval of the Salem Fire
Dept. in accordance with existing City regulations;
2. Proper numbering be obtained from the City Assessor;
3. A Certificate of Occupancy be obtained for each dwelling;
4. The plan must meet all existing conditions of the Salem Planning
Board and the City Engineer.
VARIANCE GRANTED
R>chard A. Bencal, Secretary
A COPY OF THIS DECISION HAS BEEN FILED WITH THE CITY CLERK AND THE PLANNING BOARD
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MICHAEL E. O'BRIEN LEONARD F. FEMINO
CITY SOLICITOR '$ g ASSISTANT CITY SOLICITOR
93 WASHINGTON STREET �fOpj^169"� 93 WASHINGTON STREET
and and
81 WASHINGTON STREET CITY OF SALEM ONE BROADWAY
SALEM, MA 01970 MASSACHUSETTS BEVERLY, MA 01915
745.4311 745-4311
744.3363 921-1990
Please Reply to 81 Washington Street Please Reply to One Broadway
October 7, 1987
James B. Hacker, Chairman
Salem Board of Appeals
One Salem Green
Salem, Massachusetts 01970
Re: Lot 2, Almeda Street
Dear Mr. Hacker:
Please be advised I have reviewed the documents and plans at the Board of
Appeals relative to the variance in the above matter. Said Lot 2 is a portion
of premises described as Lots 48 and 49 on a previous plan. As the plan was
subsequently revised on August 21, 1986 to accommodate a Planning Board request,
a letter of clarification would be appropriate to show the variance applies to
Lot 2 on the revised plan.
Under the Massachusetts Tort Claims Act (G.L. c. 258) , there is no liability
on a municipality or municipal employee for a claim based upon the exercise or
performance or failure to perform a discretionary function or duty, whether or
not the discretion is abused or erroneous. The courts have categorized "discre-
tionary" conduct as characterized by a high degree of discretion and judgment
involved in weighing alternatives and making choices with respect to public
policy or planning. Here, the act of the Chairman of the Board of Appeals in
clarifying a decision is clearly discretionary and immune from liability.
I am attaching a draft letter of clarification for your convenience.
Vy_t my yours,
I E. O'BRIEC , City So or
MEO:jm
Encl.
LAW OFFICES OF
MICHAEL E. MCMAHON [);'..I:ii OF
ATTORNEY AND COUNSELOR AT LAW
85 NAHANT STREET
LYNN,MASSACHUSETTS 01902 � "x �I , . .�
(617)581-1010 '� � " I� ,c nl :
ly Ci l rir �C if a .J:J.
' September 25 , 1987
Chairman
Salem Board of Appeals
One Salem Green
Salem, Massachusetts 01970
Re: Variance from frontage requirement granted on 9/22/86
for Lot 2 , Almeda Street, Salem, Massachusetts
Dear Sir/Madam:
On September 22 , 1986 , the Board of Appeals of the City
of Salem voted to approve a Variance from frontage requirements
for Lot 2 ( formerly a portion of Lots 48-49) as shown on a
Subdivision of Almeda Street, Salem, Massachusetts dated
February 20 , 1986 , Otte and Dwyer Inc. , Surveyor. I enclose
a copy of that variance.
Upon review of the language of the variance, I believe
some ambiguity exists as to the description of the lot in
question. It is my understanding that no variance was needed
for construction of a single family home on Lot 1 which had
sufficient frontage and area. The variance was requested for
Lot 2 shown on the new subdivision plan (dated February 20 ,1986 )
of the former Lots 48 and 49 .
Because the variance refers to "lots 48 and 49" , I would
suggest that a letter of clarification, which I might record
with the original variance at the Registry of Deeds , would
be required. I have enclosed a proposed draft for your
approval .
I would appreciate your immediate attention to this
matter.
Very truly yours ,
Michael E. McMahon
MEM/hm
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October 7 , 1987
Thomas Maribito
John David Tremblay
Dear Sirs :
With regard to the Decision on your Petition for Variance f
from frontage requirements for the construction of a single
family residence on Lot 2 as shown on a subdivision plan of
Almeda Street, Salem, Massachusetts dated February 20, 1986,
Otte and Dwyer Inc. , Surveyors , being a portion of premises
formerly described- as Lots 48 and 49 on a subdivision of
Almeda Park, Salem, Massachusetts ,, ,-please be advised that the
decision of the Board of Appeals of Salem, Massachusetts on
September 22 , 1986 was intended to grant a variance from front-
age requirements , and specifically to allow a 20 foot frontage,
for Lot 2 as shown on the plan entitled Subdivision of Almeda
Street, Salem, Massachusetts dated February 20, 1986 (as revised
August 21 , 1986 ) Otte and Dwyer Inc . , Surveyors as was filed with
said' Petition for Variance.
Very truly yours ,
thairman
Sal m Board of Appeals
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