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t- CRY OF SALEM
BOARD OF APPEAL
745.9595 Ext 381
j Will hold.a public hearing for all
1 persons interested in the petition
!� submitted by. PATRICIA PITREAU
requesting to file an appeal of the
issuance of building permit and
Building Inspector's refusal to
revoke the permit for property located
at 21 BARCELONA AVENUE R-1.
Said hearing to be held TUESDAY,
AUGUST 9,2005 AT 6:30 P.M., 120.
WASHINGTON STREET,3P°FLOOR,,
ROOM 313.
e - Nina Cohen;
(7/26,8/2) Chairman
46
CITY OF SALEM, MASSACHUSETTS l UF SALEM. MA
BOARD OF APPEAL CLERK'S OFFICE
120 WASHINGTON STREET, 3RD FLOOR
SALEM, MASSACHUSETTS 01970
STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 1995 AUG 22 P
MAYOR FAX: 978-740-9846 2 Q"I
DECISION ON THE PETITION OF PATRICIA PITREAU REQUESTING AN
ADIMISTRATIVE RULING FOR THE PROPERTY LOCATED AT 21 BARCELONA
AVENUE R-1
A hearing on this petition was held on August 9 2005 with the following Board Members
present: Nina Cohen, Chariman, Richard Dionne, Nicholas Helides, Bonnie Belair and
Edward Moriarty. Notice of the hearing was sent to abutters and others and notices of
the hearing were published in the Salem Evening News in accordance with
Massachusetts General Laws Chapter 40A.
Petitioner is requesting an Administrative Appeal of the Building Inspectors decision on
July 6, 2005 not to issue a cease and desist order on permit #558-05 for the property
located at 21 Barcelona Avenue in an R-1 zone.
After hearing the evidence the Board of Appeal makes the following findings of fact:
1. Petitioner Patricia Pitreau resides at 18 Barcelona Avenue in Salem.
2. On June 22, 2005, Ms. Pitreau requested that the City of Salem Building Inspector
Thomas St. Pierre issue a cease & desist order under MGL.c 40A, Sections 7 & 8 to
stop construction of a new home on the property at 21 Barcelona Ave. As grounds
for her request, she contends that the lot at 21 Barcelona Ave, having an area of
7,493 square feet is nonconforming in size. It is uncontested that the lot is located in
an R-1 zoning district where the minimum lot size requirement is 15,000 square feet.
3. On July 6, 2005, Mr. St. Pierre notified Ms. Pitreau that he would not issue a cease &
desist order on building permit #558-05, which authorized the owner of 21 Barcelona
Avenue to commence work on building a single-family home on the lot.
4. Ms. Pitreau subsequently appealed Mr. St. Pierre's decision to the Zoning Board of
Appeal and a hearing was held on August 9, 2005 at which Ms. Pitreau was
represented by Leonard Femino, Esq. of Alexander& Femino, One School St.
Beverly, Ma. and Blanche Francullo, the owner of 21 Barcelona Avenue was
represented by John Keilty, Esq. of 40 Lowell Street, Peabody, Ma.
5. Blanche Francullo through her attorney confirmed that she and her late husband
acquired the properties at 19 and 21 Barcelona Ave. in the late 1950's. The two
properties were held in common ownership by the Francullo family from their
acquisition to the present day. At the present time, a developer, Patrick Chasse, has
acquired an option to purchase the property at 21 Barcelona Avenue.
DECISION OF THE PETITION OF PATRICIA PITREAU REQUESTING AN
ADMINISTRATIVE RULING FOR THE PROPERTY LOCATED AT 21 BARCELONA
AVENUE R-1
page two
6. Ms. Francullo contends that the doctrine of merger under which adjoining lots held in
common ownership are considered one lot for zoning purposes, does not apply to
her property. In support of her argument, Ms. Francullo argues that merger only
applies to adjoining lots when they are-both nonconforming in area. Her property at
19 Barcelona Ave. which comprises of 17,226 square feet could not, she contends
have merged with the adjoining property at 21 Barcelona Ave, which contains 7,493
square feet and is admittedly nonconforming in area.
Therefore, based on the fact and on evidence presented, the Board of Appeals voted 3
in favor to 2 in opposition to uphold the Building Inspector decision with regards to 1 he
property located at 21 Barcelona Avenue. /
( 0 i
Nina Cohen, Chairman
Board of Appeal
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND
THE CITY CLERK
Appeal from this decision, if any, shall be made pursuant to Section 17 of the
Massachusetts General Laws, Chapter 40A, and shall be filed within 20 days after the
date of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts
General Laws Chapter 40A, Section 11. The Variance or Special Permit"granted herein
shall not take effect until a copy of the decision bearing the certificate of the City Clerk
that 20 days have elapsed and no appeal has been filed, or that, if such appeal has
been filed, that it has been dismissed or denied 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
t CITY OF SALEM9 MASSACHUSETTS
• : BOARD OF APPEAL CIFY OF SALEM. MAMA
120 WASHINGaTON STREET, 3RD FLOOR CLERK'S OFF
SALEM, MASSACHUSETTS 01970
STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 7
MAYOR FAX: 978-740-9846 1UUS AUG
26 A 8: 4 4
DECISION OF THE BIIILDING INSPECTOR REFUSING TO ISSUE A STOP-WORK
ORDER AND REVOKE A BIIILDING PERMIT ISSUED FOR THE PROPERTY
LOCATED AT 21 BARCELONA AVENUE R-1.
A hearing on this petition was held on August 9, 2005 with the
following Board Members present: Nina Cohen, Chairman, Richard
Dionne, Bonnie Belaire, Edward Moriarty and Nicholas Helides .
Notice of the hearing was sent to abutters and others and notices
were published in the Salem Evening News in accordance with
Massachusetts General Laws Chapter 40A.
Petitioner, Patricia A. Pitreau, is requesting that this Board
overturn a Decision of the Building Inspector denying her request
for issuance of a stop-work order and for revocation of a
building permit issued for the property located at 21 Barcelona
Avenue, in an R-1 Zoning District, and for enforcement of the
zoning ordinance.
The basis for Petitioner' s request is her contention that 21
Barcelona Avenue cannot be a legally buildable lot for the reason
that is undersized and that it merged by operation of law either
with the adjacent lot at 19 Barcelona Avenue or with the other
adjacent lot at 42 Ravena Avenue.
The Petitioner filed her request for issuance of a stop-work
order and for revocation of the building permit on June 22, 2005 .
The Building Inspector responded in writing on July 6, 2005 ,
denying Petitioner' s request . The Petitioner filed her appeal to
this Board on July 12, 2005 . Therefore, this appeal was timely
filed.
Jr
The Board of Appeal, after careful consideration of the evidence,
makes the following findings of fact:
1. In the 1950s Blanche E. Francullo and her late husband,
Michael A. Francullo, purchased six (6) small but (then)
buildable lots. These were Lots 325, 326, 327, 328, 329 and 330
as shown on plan no. 11802-E, drawn by Thomas A. Appleton, Civil
Engineer, dated December 6, 1928, as modified and approved by the
Land Court, filed in the Land Court Registration Office, a copy
of a portion of which is filed with Certificate of Title 7179 in
said Registry. These six (6) lots are recognizable today as
follows:
2. Lots 325, 326 and 327 comprise the parcel now known and
numbered as 19 Barcelona Avenue, containing 17, 226 square feet of
land, also appearing as Lot 03 on Assessor' s Map 4 .
3. Lots 329 and 330 comprise the parcel now known and numbered as
42 Ravena Avenue, containing 13, 200 square feet of land, also
appearing as Lot 17 on Assessor' s Map 4 .
4. Lot 328 is now known and numbered as 21 Barcelona Avenue,
containing 7, 493 square feet, also appearing as Lot 29 on
Assessor' s Map 4 .
5. All three of these parcels are zoned R-1 Residence. The
history of zoning in this district is as follows :
(i) From 1965 through mid-1969, the minimum required area for a
buildable lot was 5, 000 square feet. Thus, all three of the
Francullo parcels were legally buildable lots .
(ii) In July of 1969 the minimum required area for a buildable
lot was increased to 7, 000 square feet, where it remained until
April of 1977 . Thus, all three of the Francullo parcels remained
legally buildable lots.
i
(iii) In April of 1977 the minimum required area for a buildable
lot was increased to 15, 000 square feet, where it remains to
date. Under this standard, only 19 Barcelona Avenue would be
considered a legally buildable lot .
6. The house that presently occupies 19 Barcelona Avenue was
completed in or prior to 1959 . Thus, 19 Barcelona Avenue always
was a legally buildable lot, and is today a developed, conforming
lot.
7. In or prior to 1974, the parcel known and numbered as 42
Ravena Avenue was conveyed out to the Francullos' son. It is
presently owned by a neighbor who has built a single-family home
on the property. Thus, 42 Ravena Avenue is today a legally
developed nonconforming lot.
S. The lot which is the subject of these proceedings, 21
Barcelona Avenue, remains undeveloped. Since it contains only
7 , 493 square feet of land, it is nonconforming under the present
zoning which took effect in April, 1977 .
9. Inasmuch as 42 Ravena Avenue was already developed and also
was not held in common ownership with 21 Barcelona Avenue in
April of 1977 when the minimum zoning required for a buildable
lot was increased from 7, 000 square feet to 15 , 000 square feet,
it could not and did not merge with the subject lot.
10. 19 Barcelona Avenue was held in common ownership with 21
Barcelona Avenue for more than five years as of April of 1977
when the minimum zoning required for a buildable lot was
increased from 7, 000 square feet to 15, 000 square feet. For this
reason, the petitioner argues, 21 Barcelona Avenue merged into 19
Barcelona Avenue in April of 1977, by operation of Mass .Gen.L. c.
40A, sec . 6 (fourth paragraph, first sentence) provides that :
Any increase in area, frontage, width, yard, or depth
requirements of a zoning ordinance or by-law shall not apply
to a lot for single and two-family residential use which at
the time of recording or endorsement, whichever occurs sooner
was not held in common ownership with any adjoining land,
conformed to then existing requirements and had less than the
proposed requirement but at least five thousand square feet of
area and fifty feet of frontage.
11. Also see, to the same effect, Salem Zoning Ordinance, Article
VIII, Section 8-2 , which provides that
(I) f two (2) or more lots, or combinations of lots and
portions of lots, with continuous frontage in single ownership
are of record for more than five (5) years at the time of
adoption of this ordinance, and if all or part of the lots do
not meet the requirements for lot width and area as
established by this ordinance, the lands involved shall be
considered to be an undivided parcel for the purpose of this
ordinance, and no portion of said parcel shall be used or sold
which does not meet lot width and area requirements
established by this ordinance, (n) or shall any division of the
parcel be made which leaves remaining any lot with width or
area below the requirements stated in this ordinance.
12. On or about December 22, 2004 the Building Inspector issued a
Building Permit for 21 Barcelona Avenue.
13. The Building Inspector has taken the position that 21
Barcelona Avenue is a grandfathered, legally buildable,
nonconforming lot, notwithstanding the above-quoted provisions of
law, because: (i) at the time of the alleged merger, April 1977 ,
42 Ravena Avenue was already a legally developed, nonconforming
lot, and it continues to exist as such today; and (ii) at the
time of the alleged merger, 19 Barcelona Avenue was already a
legally developed, conforming lot, and it continues to exist as
such today; wherefore (iii) 21 Barcelona Avenue did not merge
with either 19 Barcelona Avenue or 42 Ravena Avenue.
14. Blanche E. Francullo, the owner of both 19 and 21 Barcelona
Avenue, agrees with the Building Inspector, and contends that
there is no legal precedent whereby a lot that was already
legally developed at the. time of the relevant zoning change would
absorb, through merger, an abutting, undersized, undeveloped lot.
Therefore, argues Ms. Francullo, the Building Permit for 21
Barcelona Avenue was lawfully issued, and the Building
Inspector' s Decision should be upheld.
15. The Petitioner, Patricia A. Pitreau, contends that nothing in
the state statute or in the local zoning ordinance provides that
the question of merger depends upon the condition of the lots as
developed or undeveloped. The Petitioner contends that the above-
quoted provisions of law should be read and applied literally and
that, under a literal application of the law, 21 Barcelona Avenue
merged into 19 Barcelona Avenue in April of 1977, wherefore the
Building Permit for 21 Barcelona Avenue was unlawfully issued,
and the Building Inspector' s Decision should be overturned.
WHEREFORE, on the basis of the foregoing facts and law, the Board
voted as follows on the Petition to Reverse the Building
Inspector' s Decision: Richard Dionne: Yes; Edward Moriarty: Yes;
Nina Cohen: Yes; Nicholas Helides: No; Bonnie Belaire: No. Since
four (4) affirmative votes are required to reverse the Building
:a
Inspector' s Decision, the Petition fails .
PETITION DENIED
August _, 2005
Nina Cohen, Chair n
Board of Appeal
1
C:\FRANCULLO, BLANCHE\FranculloDecision.rtf
PETITIONER DATE - �J
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MOTION: TO GRAT C/1 _��_��___.
TO DENY SECOND
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Richard Dionne
Bonnie Beisir�._w_�—
Nicholas Helides
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-------------------
ASSOCIATE MEMBERS ---------------
CONDITIONS
1x11 7L OC SALEM, BIRiHYOiYTS
ROILRD OF APPEAL
TO TIM UOMW OW APPERLa �
The Undersigned represent that he/she is/are the owners of a certain parcel of land located at:
18 Barcelona Avenue Btroat; Zoning District
and said parcel in affected by Section(s) of the Massachusetts State Building Code.
Plans describing the work proposed have been submitted to the Inspector of Buildings in accordance with Section DC
AL l of the Zoning Ordinance.
N/A
o r;
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The
The Application for Permit was denied by the Inspector of Buildings far the following reason(a): _
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The Undersigned hereby pxtltions the Board of Appeal to very the tarnu of the Salem Zoning Ordinance and/or the
Building Coda and order the Impactar of Buildings to approve the application fee Permit to build as filed, as the
wdaroammd of said Zoning By-laws and BuUdhiq Code would involve practical difficulty,or unnecessary hardship to
the Undersigned and relies'may be graded without aubatantially derogating from the infant and Purpose of the
Zoning Ordinance and Building Code for the following reasons:
Appeal of Building Inspector's decision Not to Issue a Cease and Desist
Order on Permit 11558-05 for 21 Barcelona Avenue dated July 5, 2005, a copy
of which is attached.
It is the contention of Petitoner that the building permit issued is in error
since the lot at 21 Barcelona Avenue is an undersized lot that does not meet
the grandfathering provision of G.L. c. 40A, Section 6.
(PLEASE PRINT)
Owner: Blanche Francullo Petitioner: Patricia A. Pitreau and others
AAI&*=; 19 Barcelona Avenue Address: 18 Barcelona Avenue
Tel. No. Tel. No.
(Signature)
Date: July 12, 2005
i°`his original application must be Mad with the City Clerk A certiflad copy of this petition will be returned to
petitioner at the time of filing with the City Clark, to than be filed Secretary with nary of the Board of Appeal , four
weer prier to the mooting of the Board of Appeal, along with a chock for advertising in the amount of
n made payable to the'Salam Evening Naas".
i
A TRUE
ATTEW •`
61
CITY CLERK
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