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21 BARCELONA AVENUE - ZBA (5) aAC)C 16�� r QQ J� 1 �uoacn mansa Jackson Elf(781)596-8830. i Legal Notice CITY OF SALEM BOARD OF APPEAL 745-9595 EXL 381 Will hold a public hearing for all persons interested in the petition sub- mitted by PATRICIA PITREAU request- ing an Administrative Appeal of the Building Inspectors ruling that lot 3228 is a buildable lot for the property ad at 21 BARCELONA AVENUE.Said hearing to be held on WEDNESDAY, FEBRUARY 16,2005 AT 6:30 P.M., 120 WASHINGTON STREET, 3RD FLOOR,ROOM 313. Nina Cohen Chairman (212,9) — I JOHN R. KEILTY, COUNSELOR AT LAW TELEPHONE (978) 531-7900 40 LOWELL STREET PEAeoor, MA 01960 FACSIMILE (978) 531-2479 E-MAIL: KEILTVLAWaQAOL.COM June 21, 2005 Board of Appeals City of Salem 120 Washington Street 3rd Floor Salem, MA 01970 RE: Rehearing of Administrative Appeal of Building Inspector' s Decision that 21 Barcelona Avenue is a buildable lot Ladies and Gentlemen: As you know, this office represents Blanche Francullo of 19 Barcelona Avenue with regard to the controversy over whether her abutting lot at 21 Barcelona Avenue is a legally buildable lot . This evening' s hearing is being conducted pursuant to an Order of Remand issued by the Essex Superior Court on or about April 29, 2005 in the matter of Patricia A. Pitreau and Jayne M. Diamont vs. the Zoning Board of Appeals of the City of Salem, civil action no. 2005-0381 . Said Order directed that ' the above entitled matter be and hereby is REMANDED to the Zoning Board of Appeals of the City of Salem for Reconsideration of its decision dated February 16, 2005 and that the Zoning Board of Appeals reopen the public hearing . . . to take further evidence prior to such reconsideration. " I am submitting the present Memorandum to the Board for the purpose of showing why, for reasons both procedural and substantive, the Board should grant no relief to the petitioners, Patricia A. Pitreau and/or Jayne M. Diamont, and should affirm its decision of February 16, 2005, which decision 1 upheld the determination of the Building Inspector that 21 Barcelona Avenue is a legally buildable lot . PROCEDURAL ISSUES I shall address the procedural issues first . Procedurally, this Board should deny the petitioners any relief for three reasons : (1) The petitioners failed to make a written demand upon the Building Inspector that he enforce the zoning ordinance prior to bringing their Administrative Appeal . (2) The December 15, 2004 letter from the Building Inspector, which merely reaffirmed his prior Decision of February 27, 2004 Decision, was not an appealable "Decision" within the meaning of Mass .Gen.L. c. 40A, sec . S . (3) The administrative appeal was not timely filed under Mass.Gen.L. c. 40A, sec. 15 . Relevant Facts The facts which are relevant to a discussion of these procedural issues include the following: On or about January 15 , 2004 , Francullo' s attorney asked the Salem Building Inspector for his opinion as to whether or not the locus is a grandfathered buildable lot . On or about February 27, 2004 the Salem Building Inspector issued a written opinion stating that the locus is a grandfathered buildable lot . At no time from February 27 , 2004 to date did the petitioners (or anybody else) , appeal the Building Inspector' s February 27, 2004 Decision. 2 On or about December 15, 2004, in response to various neighbor inquiries, the Building Inspector reiterated his opinion that the locus is a grandfathered buildable lot . On or about December 22, 2004 the Salem Building Inspector issued a Building Permit for the locus . At no time from December 22 , 2004 to date did the petitioners (or anybody else) , appeal the Building Inspector' s issuance of the Building Permit . On or about February 4, 2005 the petitioners, Patricia A. Pitreau and Jayne M. Diamont, together with several others, filed in the Office of the City Clerk an appeal to the Salem Zoning Board of Appeals from the decision of the Building Inspectors ruling on lot 328, 21 Barcelona Avenue is a buildable lot . The petitioners and other allege that the lot t is not sufficient in size ze to meet the current requirements of the Salem Zoning and Ordinances relating to the required square footage to build. Secondly the lot fails to meet any exception by the lot size provided by the Ordinance or by State statute. Said Administrative Appeal did not include an appeal of the December 22, 2004 Building Permit; indeed, it did not even mention it . Said Administrative Appeal did not specify which Decision of the Building Inspector it sought to appeal . At no time prior to filing the said Administrative Appeal did the petitioners (or anybody else) , make a written demand upon the Building Inspector that he reverse his Decisions of February 27, 2004 and/or December 15, 2004 or otherwise enforce the Zoning Ordinance . 3 On or about February 16, 2005 the Board of Appeals made its decision upholding the Decision of the Building Inspector; and on or about March 2 , 2005 the Board filed its decision with the City Clerk. On or about March 8, 2005 the petitioners, Patricia A. Pitreau and Jayne M. Diamont, filed their complaint for judicial review of this Board' s decision in the Essex Superior Court . As previously noted, by Order dated April 29, 2005, the Court remanded the case to this Board for further proceedings . Argument (1). The petitioners failed to make a written demand upon the Building Inspector that he enforce the zoning ordinance prior to bringing their Administrative Appeal . The service of a written enforcement demand upon the Building Inspector, pursuant to Mass .Gen. L. c . 40A, sec . 7 is an absolute and indispensable prerequisite to any Administrative Appeal under secs . 8 and 15 (and any subsequent action for judicial review under sec . 17) . In pertinent part, sec . 7 provides that : . . . . If the officer or board charged with enforcement of zoning ordinances or by-laws is requested in writing to enforce such ordinances or by-laws against any person allegedly in violation of the same and such officer or board declines to act, he shall notify, in writing, the party requesting such enforcement of any action or refusal to act, and the reasons therefor, within fourteen days of receipt of such request . . . . (Emphasis added. ) 4 Sec . 8 then provides that An appeal to the permit granting authority as the zoning ordinance or by-law may provide, may be taken by any person aggrieved b reason of his inability nability to obtain a permit or enforcement action from any administrative officer under the provisions of this chapter . . . . (Emphasis added. ) For authorities holding that the written demand is a condition precedent to any further enforcement action before a Board of Appeals or in Court, see : Stefanick v. Planning Board of Uxbridge, 39 Mass .App.Ct . 418, 425 (1995) (landowners could not maintain action against building inspector to compel enforcement of zoning by-law where they did not make written request of inspector to enforce the by-law) ; William C. Bearce Corp. v. Building Inspector of Brockton, 11 Mass .App. Ct . 930 (1981) (where plaintiff seeking to enjoin construction of commercial building allegedly in violation of zoning ordinance failed to serve written request for enforcement on building inspector, action in Court could not be maintained; Neuhaus v. Building Inspector of Marlborough, 11 Mass . App.Ct . 230, 231 (1981) (where it appeared at trial that neither of the plaintiffs had ever made any request in writing of the building inspector that he enforce the ordinance in question, the trial judge properly dismissed the action on the grounds that the plaintiffs had failed to exhaust their administrative remedies) . Also see Elio v. Zoning Board of Appeals of Barnstable, 55 Mass .App. Ct . 424 , 428 (2002) (" (n) or did she make any written request to the commissioner for enforcement of the zoning ordinance" ) . At bar, the petitioners made no written demand upon the Building Inspector for enforcement of the zoning Ordinance. "Having asked nothing and received nothing from the building inspector, " Stefanick v. Planning Board of Uxbridge, supra, at 425, the 5 petitioners are not properly before the Board of Appeals. That being so, their petition should be denied and dismissed. (2) The December 15, 2004 letter from the Building Inspector, which merely reaffirmed his prior Decision of February 27, 2004 Decision, was not an appealable "Decision" within the meaning of Mass.Gen.L. c. 40A, sec. 8. Since, as we have seen, the petitioners failed to serve a written enforcement demand upon the Building Inspector, there was no occasion for the Building Inspector to issue a written reply. Therefore, there was nothing for the petitioners to appeal to the Board of Appeals . However, the petitioners might argue that the Building Inspector' s December 15, 2004 letter was an appealable decision. It was not. First, it was not issued in response to an enforcement request under Mass .Gen.L. c . 40A, sec . 7 . Again, there was no enforcement request . Second, it was not issued to the petitioners, wherefore they cannot be "persons aggrieved" by that decision. And finally, it is settled that a letter which merely reaffirms a prior decision is not, itself, an appealable Decision under Mass .Gen.L. c. 40A, sec . 8 . See : Kolodny v. Board of Appeals of Brookline, 346 Mass . 285, 287-288 (1963) , which held that where the building commissioner of a town, after receiving a written request that he revoke certain issued building permits, denied in writing the request on the ground that the "proposal (for which the permits had been granted) meets the requirements of the Building Code and Zoning By-Law, " the denial was merely a reaffirmation of the commissioner' s prior decision to issue the permits and did not constitute a decision of his from which aggrieved residents of the town could appeal to its board of appeals . As the Court explained: 6 Here the building commissioner decided the matter submitted to him by the request to revoke permits, and his writing is sufficient to show the substance of his decision, that is, that the "proposal [for which permits had been granted] meets the requirements of the Building Code and Zoning By-Law of the. Town of Brookline . " But the defendants rightly contend that this was not a "decision" from which an appeal may be taken to the board of appeals under G.L. c. 40A, sec . 13, for it is no more than a reaffirmation of the decision of March 27, 1962, to issue the permits. The plaintiffs may not thus, in effect, modify the statutory provisions in respect of the issuance of permits . Id. (emphasis added) . A decade after Kolodny was handed down, the Connecticut Supreme Court cited it with approval, noting that to hold otherwise would permit petitioners to avoid the applicable statutes of limitation governing such appeals by the artifice of generating endless reaffirmations of prior decisions: In the present cases it is clear that the plaintiffs could < have taken appeals from the commissioner' s approvals of the Summer Street branch and the Buxton Farms Road branch in the year 1968 . At that time each of the plaintiffs knew of the Fairfield County Trust Company' s applications and their approval and made no effort to take appeals to the Superior Court . Consequently, the 1970 requests and the appeals from the denial of them are protests of the same actions of the commissioner which should have been appealed under 36-27, no later than fourteen days after the plaintiffs learned of the actions in 1968 . These attempts are obviously a mere disguise for late appeals, and are not appealable "decisions" or "rulings" within the purview of 36-27 . If we were to hold otherwise, we should be granting disgruntled parties an' indefinite period of time in which to test administrative action merely by requesting reversals of prior decisions, thus prolonging final determination of the issues involved and frustrating the purpose of 36-27. In Kolodny v. Board of Appeals, 346 Mass . 285, 191 N.E. 2d 689, an appeal was taken to the Supreme Judicial Court of the Commonwealth of Massachusetts from the decision of a zoning board that it was without jurisdiction to hear an appeal from the town building 7 commissioner' s denial of a request that zoning permits he had issued should be revoked as violative of zoning bylaws. That court determined that the building commissioner' s denial of the request to revoke the permits was "no more than a reaffirmation" of the commissioner' s prior decision to issue the permits and was, therefore, not an appealable "decision" within the statute allowing appeal . Fidelity Trust Co. v. Lamb, 164 Conn. 126, 132-133 , 318 A.2d 109 (1972) (emphasis added) . At bar, the December 15, 2004 letter from the Building Inspector, merely reaffirmed his prior decision of February 27, 2004 . It was therefore not an appealable "decision" within the meaning of Mass .Gen.L. c. 40A, sec . 8 . That being so, the petitioners are not properly before the Board of Appeals, and their petition should be denied and dismissed. (3) The administrative appeal was not timely filed under Mass .Gen.L. c. 40A, sec. 15 . The petitioners filed their Administrative Appeal in the City Clerk' s Office on February 4, 2005 -- well beyond the thirty-day limitation imposed on such appeals by Mass .Gen.L. c . 40A, sec . 15 . Therefore, the Administrative Appeal was not timely filed -- as the Board of Appeals, itself, previously found. In pertinent part Mass .Gen.L. c . 40A, sec . 15 provides as follows : Any appeal under section eight to a permit granting authority shall be taken within thirty days from the date of the order or decision which is being appealed. The petitioner shall file a notice of appeal specifying the grounds thereof, with the city or town clerk, and a copy of said notice, including the date and time of filing certified by the town clerk, shall be filed forthwith by the petitioner with the officer or board whose order or decision is being appealed, and to the permit granting authority, specifying in the notice grounds for such appeal . Such officer or board shall forthwith transmit to the board of appeals or zoning administrator all documents and 8 papers constituting the record of the case in which the appeal is taken . . . . (Emphasis added. ) At bar, the petitioners' Administrative Appeal clearly shows that it was not received in the City Clerk' s Office until February 4 , 2005 -- which is considerably beyond the thirty day limitations period, whether said period be measured from December 15 or December 22 . As the Court recognized in Elio v. Zoning Board of Appeals of Barnstable, supra, at 427, "a person may make a written request to the officer to enforce the zoning ordinance and then, if that request is denied in writing, may appeal the denial to the board within the time prescribed by sec. 15 . " (Emphasis added. ) So saying, the Court held that a Land Court judge properly granted summary judgment annulling for lack of jurisdiction the decision of a town' s zoning board of appeals ordering the revocation of a < building permit, where the individual aggrieved by the decision of the town' s building commissioner did not file her appeal from the issuance of the building permit until after the thirty-day appeal period had elapsed. Also see Vokes v. Avery W. Lovell, Inc. , 18 Mass .App.Ct . 471, 479 (1984) (noting the thirty-day appeal period prescribed by sec. 15) ; Town of Wellfleet v. Amsler, Barnstable Superior Court civil no. 200200646 (September 16, 2004) (Burnes, J. ) ("applicants aggrieved by an order of the building inspector or his agent under a zoning bylaw have 30 days from the date of said order to appeal to the zoning board of appeals. G.L. C. 40A, secs. 8, 1511) . At bar, the petitioners apparently attempted to file their Administrative Appeal with the Building Inspector on January 19, 2005 (note the date stamp from that department on Exhibit 2 of the complaint) . However, the date stamp from the City Clerk 9 clearly reflects that the Appeal was not received by that department until February 4, 2005. On this point the statute is clear: " (t)he petitioner shall file a notice of appeal specifying the grounds thereof, with the city or town clerk, and a copy of said notice, including the date and time of filing certified by the town clerk, shall be filed forthwith by the petitioner with the officer or board whose order or decision is being appealed. " The filing of such an appeal with an officer other than the City Clerk is ineffective and fatal to the appeal . Greeley v. Zoning Board of Appeals of Framingham, 350 Mass. 549, 551-552 (1966) (a zoning board of appeals had no jurisdiction of a purported appeal to it where the notice of appeal was not filed with the municipal clerk within thirty days, even though the notice of appeal was delivered to the counsel for the board within the thirty days and a signed copy was filed with the municipal clerk after the expiration thereof) . Accord: Racette v. Zoning Board of Appeals of Gardner, 27 Mass.App. Ct. 617, 619-,620 (1989) (filing , of a petition for zoning variances with a building inspector of a city, pursuant to city officials ' "standard operating procedure, " did not constitute a filing of the petition with the city clerk as required by c. 40A, sec. 15, so as to start the running of the period within which the zoning board of appeals must act before the petition would be deemed constructively granted; Carstensen v. Zoning Board of Appeals of Cambridge, 11 Mass.App. Ct. 348, 351 (1981) (" (n)ormally, strict compliance with the rules for taking appeals is necessary and the failure to pursue such a statutory remedy within the time frame set forth deprives the appeals board of jurisdiction to review actions concerning permits") . At bar, there is no dispute: the plaintiffs did not file their Administrative Appeal with the City Clerk until after the expiration of the thirty-day period prescribed by C. 40A, sec. 15. Therefore, the appeal was untimely, the Board was right to dismiss it before, and the Board should dismiss it again. 10 SUBSTANTIVE ISSUE The gravamen of the petitioners' argument is that 21 Barcelona Avenue cannot be a legally buildable lot for the reason that it merged either with the adjacent lot at 19 Barcelona Avenue or with the other adjacent lot at 42 Ravena Avenue. The sum and substance of their argument are set forth in paragraphs 13, 14 and 15 of their Superior Court complaint: 13. The subject locus at 21 Barcelona Avenue, located in an R- 1 zone, contains 7, 493 square feet (of land) . The Salem Zoning Ordinance, Article VI, Section 6-4, Table I, requires a minimum lot area of 15, 000 square feet . . . . 14 . The subject locus at 21 Barcelona Avenue, together with the lot known as 19 Barcelona Avenue, has been, since 1962, continuously owned in the name of Michael A. Francullo and Blanche E. Francullo . . . . Adjoining lots held in common ownership are considered as one lot for zoning purposes . . . . 15. The Salem. Zoning Ordinance, at Article VIII, Section 8-2 provides that "if 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" . . . In his letter of December 15, 2004 the Building Inspector rejected the merger argument, writing: I have reviewed the history of 19, 21 Barcelona and 42 Ravena. At the time 42 Ravena was constructed, it was a legal, nonconforming lot. 19 Barcelona exists today as a legal 11 conforming lot. Therefore, 21 Barcelona has not merged with either 19 Barcelona or 42 Ravena. I will now endeavor to show why the Building Inspector's determination that 21 Barcelona Avenue has not merged with either 19 Barcelona Avenue or 42 Ravena Avenue was and is correct as a matter of law. Relevant Facts The facts which are relevant to a discussion of the issue of merger include the following: 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 Curt, 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: (1) 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 . (2) 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 . (3) 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. All three of these parcels are zoned R-1 Residence. The history of zoning in this district is as follows: 12 (1) 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. (2) 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. (3) 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. However, we must next consider the history of the lots, themselves. The house that presently occupies 19 Barcelona Avenue was completed in or prior to 1959. Thus, there can be no question but that 19 Barcelona Avenue always was a legally buildable lot, and is today a developed, conforming lot. This fact will become s key to our determination of the merger issue later on hereinbelow. In or prior to 1974, the parcel known and numbered as 42 Ravenna 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, not only is this lot a legally developed nonconforming lot, as the -Building Inspector has recognized, but, in addition, it was not held in common ownership in April of 1977 when the minimum required area for a buildable lot was increased from 7, 000 square feet to 15, 000 square feet. Therefore, there can be no argument that 42 Ravenna Avenue ever merged with 21 Barcelona Avenue. It only remains to discuss 21 Barcelona Avenue, whose 7, 493 square feet of land remain undeveloped. Certainly this lot was held in common ownership with 19 Barcelona Avenue in April of 13 1977 when the minimum required area for a buildable lot was increased from 7, 000 square feet to 15, 000 square feet; it was held in such common ownership for more than five (5) years next prior to the zoning change; and it remains in common ownership today. Thus, the issue is fairly raised: did 21 Barcelona Avenue merge with 19 Barcelona Avenue in April of 1977 by operation of Article VIII, Section 8-2 of the Salem Zoning Ordinance? At first glance, it would appear that under a literal reading of the ordinance, a merger did occur. However, under the well- developed law of merger, it clearly appears that the ordinance is not to be given a literal reading in cases such as the present case. To come directly to the point: there is no precedent for holding that a previously developed, conforming lot absorbs through merger an adjacent undeveloped, nonconforming lot. Put otherwise: merger applies only where all of the contiguous lots are undersized. Like the Salem Zoning Ordinance, 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 existingrequirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage. (Emphasis added. ) This statute codifies -- but did not originate, Preston v. Board of Appeals of Hull, 51 Mass.App. Ct. 236, 241 (2001) -- the common law doctrine of "merger, " pursuant to which adjoining lots held in common ownership at the time of a zoning change which results in one or both of the lots lacking sufficient area to conform will be treated as a single, conforming lot for zoning purposes. 14 The rationale for the merger doctrine, and for the limited statutory exemption therefrom, is set forth in Sorenti v. Board of Appeals of Wellesley, 345 Mass. 348, 353, 187 N.E.2d 499, 502- 03 (1963) : The nonconforming exemption was not to apply, however, when the lot owner had adjoining land available for use in satisfying the minimum frontage requirement.9 � The rationale of such a provision is that an owner who has or has had adjacent land has it within his power, by adding such land to the substandard lot, to comply with the (zoning) requirement, or, at least, to make the (lot) less substandard. (Emphasis added. ) Again, it might be argued that if we simply apply the rule that "adjoining parcels held in common ownership are generally considered one lot for zoning purposes, " then the two Barcelona Avenue lots did, indeed, merge at the time of adoption of the < present, 15, 000 square foot area requirement. However, there is authority that the statute, itself, is not to be given a literal interpretation, and that it is to be read in the context of the pre-existing common law background and purpose which it is said to codify. In Preston v. Board of Appeals of Hull, 51 Mass.App. Ct. 236, 241 (2001) , a case decided under Mass.Gen.L. c. 40A, sec. 6, the Court observed that the "statute should not be interpreted as being at odds with the common law `unless the intent to alter it is clearly expressed, " id. , at 240 (internal citation omitted) . Thus, Preston directs us to look beyond the literal wording of the statute and into the purpose behind the merger doctrine, and thus supports an argument that merger ought not to be applied where those purposes will not thereby be served. 15 In Planning Board of Norwell v. Serena, 27 Mass.App. Ct. 689, 690 (1989) , overruled on other grounds at 406 Mass. 1008 (1990) , the Appeals Court observed: The purpose of the statutory grandfather provision is, to be sure, to "protect (] a once valid lot from being rendered unbuildable for residential purposes" . . . but only if there is compliance with statutory conditions. The condition that the nonconforming lot "not [be] held in common ownership with any adjoining land" represents a statutory codification of a principle of long-standing application in the zoning context: a landowner will not be permitted to create a dimensional nonconformity if he could have used his adjoining land to avoid or diminish the nonconformity. (Internal citation omitted, emphasis added. ) The emphasized passage has been ' reiterated many times in subsequent decisions; see: Adams v. Peterson, 35 Mass.App. Ct. 782, 787 note 6 (1994) ; Di Stefano v. Stoughton, 36 Mass.App. Ct. 642, 645 (1994) ; Burke v. Zoning Board of Appeals of Harwich, 38 Mass. App. Ct. 957, 958-960 (1995) ; Whelan v. Zoning Board of Appeal of Norfolk, 430 Mass. 1009, 1010 (2000) ; Perez v. Board of Appeals of Norwood, 54 Mass.App. Ct. 139, 141 note 5 (2002) ; to similar effect, even if not an exact quote, see: Heavey v. Board of Appeals of Chatham, 58 Mass.App. Ct. 401, 404-405 (2003) . In our case, Blanche Francullo is not trying to "create" a dimensional nonconformity. Only one of the two lots is nonconforming, and the other, conforming lot was developed prior to the zoning change (and is still conforming, even under present zoning) . Thus, 19 Barcelona has no need to "borrow" land from 21 Barcelona in order to become a conforming lot -- and 21 Barcelona certainly cannot "borrow" any land from previously-developed, conforming 19 Barcelona in an effort to bring itself into conformity with zoning. Manifestly, in such circumstances, the purposes of the merger doctrine do not exist, and therefore merger does not occur. 16 Consider, for instance, one Massachusetts decision which seems, at first glance, to contradict our argument, Asack v. Board of Appeals of Westwood, 47 Mass.App. Ct. 733 (1999) . The facts in Asack were as follows: In 1970, . Rosemary M. and Robert J. Valinote owned lots 7 and 8 shown on a 1936 plan. Their home was on lot 8, which they purchased in 1936. They acquired lot 7, an adjacent unimproved lot, in 1942. Due to changes in the zoning by-law after 1936, lot 7 in 1970 lacked both the frontage and the area needed to be a buildable lot. Lot 8 was also nonconforming by reason of insufficient area. In 1972, the Valinotes sold lot 8 to Ronald L. and Marguerite L. Prosser, and in 1973 sold them lot 7. Thus, although briefly separated in 1973, the two lots were once again in common ownership in 1973 . Also in 1973, the Prossers conveyed both lots to Ronald L. Prosser as trustee of the Prosser Family Trust. In 1988, the plaintiffs purchased both lots from the Prosser Family Trust, and in 1994 applied for the building permit to construct a residence on lot 7. Although the case presented other issues, which arose out of additional facts not recited hereinabove, the Court found it unnecessary to address those issues, for the simple reason that the Court found that the lots had merged by operation of law in 1973 when the Prossers (plaintiffs, predecessors in title) acquired both lots: (W) e agree with the defendant board which in its decision stated, " [T]o the extent that the separation of said Lot 7 and Lot 8 could in any way be determined an exercise of a variance, the subsequent merger of Lot 7 and Lot 8 in common ownership in the absence of anything more, would nullify any type of an exercise. " Unlike the situation in Hogan, where the two lots ended up in different ownership, here the subsequent purchase of lot 7 by the Prossers, who were already the owners of lot 8, effected a merger as did the later purchase of both lots by the plaintiffs. This result is closely analogous to the "principle of long-standing application in the zoning context (with 17 regard to nonconforming exemptions] : a landowner will not be i permitted p ted to create a dimensional nonconformity if he [can use] his adjoining land to avoid or diminish the nonconformity. " Planning Bd. of Norwell v. Serena, 27 Mass. App. Ct. 689, 690 (1989) , and cases cited, S. C. , 406 Mass. 1008 (1990) . Burke v. Zoning Bd. of Appeals of Harwich, 38 Mass. App. Ct. 957, 958-960 (1995) . Moreover, " (a]djoining parcels held in common ownership are generally considered one lot for zoning purposes. Heald v. Zoning Bd. of Appeals of Greenfield, 7 Mass. App. Ct. 286, 290 (1979) . The 'usual construction of the word "lot" in a zoning context ignores the manner in which the components of a total given area have been assembled and concentrates instead on the question whether the sum of the components meets the requirements of the by-law. Becket v. Building Inspector of Marblehead, 6 Mass. App. Ct. 96, 104 (1978) . " Girard v. Board of Appeals of Easton, 14 Mass. App. Ct. 334, 335 (1982) . A person owning adjoining record lots may not artificially divide them so as to restore old record boundaries to obtain a grandfather nonconforming exemption; to preserve the exemption the lots must retain "a separate identity. " Lindsay v. Board of Appeals of Milton, 362 Mass. 126, 132 (1972) . A basic purpose of the zoning laws is "to foster the creation of conforming lots. " Murphy v. Kotlik, 34 Mass. App. Ct. 410, 414 n. 7 (1993) . See Giovannucci v. Board of Appeals of Plainville, 4 Mass. App. Ct. 239, 242-243 (1976) . We see no reason why this purpose, which is reflected in the zoning principle that precludes an owner from availing himself of a nonconforming exemption unless he includes his adjacent land in order to minimize the nonconformity, Sorenti v. Board of Appeals of Wellesley, 345 Mass. 348, 353 (1963) , should not also apply to the plaintiffs who by reason of their deed from the Prossers own both lots 7 and 8. Their ownership of lot 7, which is adjacent to nonconforming lot 8, reduces or eliminates the nonconformity. See Vetter v. Zoning Bd. of Appeal of Attleboro, 330 Mass. 628, 630-631 (1953) . For this reason, they cannot avail themselves of the 1970 variance, and the denial of the building permit was proper. Id. , at 735-736 (emphasis added) . 18 Thus, in Asack, the developed lot was held to have merged with the undeveloped lot in order to create a single conforming lot. There is, however, a hugely significant distinction between Asack and the present matter: in Asack, both lots were nonconforming; hence, the Court 's observation that the Asacks' "ownership of lot 7, which is adjacent to nonconforming lot 8, reduces or eliminates the nonconformity" of lot B. In other words, all that Asack held was that one pre-existing, undersized, developed lot absorbed, through merger, its adjoining, undeveloped but also undersized lot, in order to create a single, conforming lot. Asack never confronted our situation, and thus did not hold that a developed and fully-comforming lot would absorb an abutting, vacant, nonconforming lot, thereby acquiring additional land area which it does not need in order to come into conformity! I reiterate that I have found no Massachusetts precedent mandating such a result. The Courts of sister states, confronted with this issue, have forthrightly sided with our interpretation of the merger doctrine. Thus, the Maryland Court of Appeals, called upon to determine whether or not to adopt the merger doctrine, surveyed a variety of other jurisdictions and concluded that merger ought only to apply where all of the contiguous lots are undersized: Efforts throughout the country, including Baltimore County, have been to restrict undersize parcels, not oversized parcels. These efforts have resulted in the creation and evolution in zoning of the doctrine of merger, which, in zoning cases, generally prohibits the use of individual substandard parcels if contiguous parcels have been, at any relevant time, in the same ownership and at the time of that ownership, the combined parcel was not substandard . . . . in other words, if several contiguous parcels, each of which do not comply with present zoning, are in single ownership and, as combined, the single parcel is usable without violating zoning provisions, one of the separate, nonconforming parcels may not then or thereafter be considered nonconforming, nor may a variance be granted for that separate parcel . . . . As far 19 as we can discern, the zoning doctrine of lot merger has never been applied in any jurisdiction to limit the creation of parcels that exceed minimum dimensional requirements; merger has been applied only to prohibit the later creation of undersized parcels. Friends of Ridge v. Baltimore Gas and Electric Company, 352 Md. 645, 653, 724 A.2d 34 (1999) (footnote omitted, emphasis added. ) Also see: Stansbury v. Jones, 372 Md. 172, 180 note 3 (2002) : There is a body of case law in the land use context concerning the merger of sub-standard lots. in Friends of the Ridge v. Baltimore Gas and Electric Company, 352 Md. 645, 653, 724 A. 2d 34, 38 (1999) , a case in which protestants were challenging the utilities ' right to combine lots into larger parcels, thereby eliminating interior lot lines, we noted: "These efforts have resulted in the creation and evolution in zoning of the doctrine of merger, which, in zoning cases, generally prohibits the use of individual substandard parcels if contiguous parcels have been, at the relevant time, in the same ownership and at the time of that ownership, the combined parcel was not substandard. " We noted that we were unaware, at that time, of any prior Maryland cases expressly adopting that doctrine. We then concluded that generally, where the doctrine had been recognized, its primary function had been to prohibit the re- subdivision of 'combined' lots into smaller sub-standard lots. In Friends we noted numerous cases in other jurisdictions concerning the doctrine: Loechner v. Campoli, 49 N.J. 504, 231 A.2d 553 (1967) ; Somol v. Board of Adjustment, 277 N.J. Super. 220, 228, 649 A.2d 422, 426 (1994) (" (Sleparate undersized but contiguous lots fronting on the same street in single ownership ordinarily merge into one lot and conveyance of a portion will require subdivision and variance approval . ") ; Iannucci v. Zoning Board of Appeals, 25 Conn. App. 85, 592 A. 2d 970 (1991) ; In re Appeal of Gregor, 156 Pa. Cmmw. 418, 627 A.2d 308 (1993) ; and. Skelley v. Zoning Board of Review, 569 A.2d 1054, 1056 (R. I. 1990) ("The concept of merger of 20 contiguous nonconforming lots in common ownership as an appropriate method to combine nonconforming lots is gaining increased recognition. ") . (Emphasis added. ) In Township of Middleton v. Middleton Zoning Board of Appeals, 120 Pa. Commonw. 238, 244, 548 A.2d 1297 (1988) , a case dealing with two adjoining parcels, one conforming and one nonconforming, the Pennsylvania Court pointed to the absurdity of "developing a rule which would say this lot may be purchased and developed by any person except the owner of the neighboring land", (internal citation omitted) . And the Vermont Supreme Court has ruled that its own "small lot statute, " 24 V. S.A. sec. 4406 (1) , which is analogous to our own Mass.Gen.L. c. 40A, sec. 6 (fourth paragraph) , "does not apply to undeveloped lots of sufficient size . . . or developed lots of sufficient size. " in Re Appeal of Richards, 174 Vt. 416, 418, 819 A. 2d 676 (2002) , citing and quoting Lubinsky v. Fair Haven Zoning Board, 148 Vt. 47, 50, 527 A.2d 227, 228 (1986) . It should be noted that Richards presents a fact pattern very similar to ours (although the Vermont statute, it must be admitted, contains distinguishing features) . In sum, the weight of precedent supports the Building Inspector's decision that: At the time 42 Ravena was constructed, it was a legal, nonconforming lot. 19 Barcelona exists today as a legal conforming lot. Therefore, 21 Barcelona has not merged with either 19 Barcelona or 42 Ravena. 21 Wherefore, on behalf of Blanche Francullo, I respectfully request that this Honorable Board (1) uphold the decision of the Building Inspector that 21 Barcelona Avenue is a pre-existing, nonconforming, buildable lot; and (2) deny and dismiss the petitioners, administrative appeal . Respectfully submitted, (o5hnR. iety, quire JRK/emb 9 C TRANCULLO, BLANCHE\Francullo-LettertoZBA\Francullo-LettertoZBA.doc 22 INTEROFFICE MEMORANDUM TO: MEMBERS, SALEM ZONING BOARD OF APPEAL FROM: JAMES G. GILBERT, CITY SOLICITOR SUBJECT: MERGER DATE: JUNE 21, 2005 BACKGROUND: This matter originally came before the Zoning Board of Appeals on February 16, 2005 on appeal from the decision of the Building Inspector to issue a foundation permit regarding a lot on 21 Barcelona Avenue. At issue was whether or not the existing lot merged with another lot located at 19 Barcelona Avenue. QUESTION: How is the doctrine of merger lied in these situations and what findings of fact g PP g are necessary to reach a conclusion on the issue of merger. DISCUSSION: There are several findings of fact necessary to reach a decision on whether or not a lot merged with an adjoining lot. (1) Are the lots held in common ownership? Section 6 of Chapter 40A provides that lots are held in common ownership "if they are listed as owned by the same party on the most recent instrument of record prior to the effective date of the zoning change." Marinelli v. Board ofAppeals of Stoughton, 440 Mass. 255, 258 (2003). The general rule is that"adjoining parcels held in common ownership are generally considered one lot for zoning purposes." Heald v. Zoning Board ofAppeals of Greenfield, 7 Mass.App.Ct. 96, 104 (1978). This general rule furthers the basic purpose of zoning laws to "foster the creation of conforming lots." Murphy v. Lotlick, 34 Mass.App.Ct. 410, 414,n. 7 (1993). In the instant case, the abutters contend that the lots have been held in common ownership since 1962. The ZBA must make a finding of fact on this issue, as no such finding of fact exists in the prior decision. In reviewing the matter, the ZBA should look to the time frame applicable. Therefore, the ZBA must also make a finding of fact as to when the Salem City Council adopted the dimensional requirements (Salem Zoning Ordinances, Art VI, g6-4,Table 1) at issue in this matter.' Once that date is determined, the ZBA then must determine whether or not the lots were held in common ownership prior to that time. (2) Has five years elapsed since the adoption of the zoning ordinance? If the ZBA finds that the lots were held in common ownership in advance of the adoption of the zoning change, then they must next determine whether or not the lots have earned the protections of the grandfathering provisions of section 6. If the ZBA fords that the lots were held in common ownership for five years prior to the zoning change, then the grandfathered provisions of section 6 will not apply, and the lots will have merged under Salem Zoning ordinance Art VIII Section 8-2. If the lots have been deemed to have merged under the provisions of section 6 and the ordinance, then the ZBA must reverse the decision of the Building Inspector and find that the permit was issued in error. (3) Was the appeal timely? In its decision, the ZBA found that the appeal was filed on February 4,2005, the date it was stamped received by the Clerk's office. The ZBA should make specific findings of fact with respect to the date the permit was issued and the date of the filing of the appeal. The decision does not make sufficient findings of fact given the various dates stamped on the appeal. The abutters contend that their appeal is timely. The abutters filed for a review of the decision of the Building Inspector on or about January 19, 2005 according to the date stamp of the Building Inspector's office. The permit itself was issued on December 22, 2004. The date stamp on the appeal from the City Clerk's office appears to read February 4, 2005. There is no explanation in the decision for the various dates recorded on the appeal. The abutters do contend that they were denied proper notice of the issuance of the building permit, and they also contend that they did not receive accurate information from the building inspector's office as to the issuance of the permit or to their rights to an appeal. There is nothing in the record about whether or not an enforcement actions was requested by the abutters sometime after December 22, 2004. However,if the abutters requested an enforcement action from the Building Inspector sometime after December 22, 2004, and if that action was denied, the clock for the appeal would begin on the date the enforcement, and not on the date the permit issued. CONCLUSION: The ZBA needs to make the following findings of fact: (1) Have the lots in question been held in common ownership? (2) If so,how long have the lots been held in common ownership? I understand that the date is on or about May 5,1977,but the ZBA should hear evidence of this fact. 2 r (3) When did the City Council adopt the dimensional requirements at issue in this matter? (4) Were the lots held in common ownership prior to adoption of the zoning amendment at issue? (5) Has five years elapsed since the adoption of the zoning amendments? (6) What date was the permit issued? (7) What date was the appeal filed? (8) Was there a request for an enforcement action by any of the abutters after the issuance of the permit? (9) When was the enforcement action request made? (10) What action was taken by the Building Inspector as the result of a request for an enforcement action,if any? (11) On what date did the Building Inspector act with respect to the enforcement action, if at all? 3 PETITIONER DATE LOCATION MOTION : TO GRAT TO DENY SECOND SECOND TO RE-HEAR SECOND WITIIDRAW SECOND CONTINUE SECOND ROLL CALL�y..r G�t�� env Ameed Wi h �~ Nina Cob ��--� �, raw Continue Richard Dionne —�-`- Bonnie Belau Nicholaa Helides -------------- _—_—__--------------- ---------- Edward Moriarty .___----------- �---- ----__ ASSOCIATE MEMBERS S --- - -- ----- — ----------------- CONDITIONS L oY 333 / or 360 cor -73/ t , LOT 3Z $ ,7493 ' s SEE L .C. N //8Oz Lor Go 327 3299 �" x 33 l n 13� :a 1 3 , I �' I X40' P2 Posep i f r 3 .SS "�J }� CL L Zoning District: R - 1 R Assessor's Map 4 Lot 00294.e isaoF Plot Plan of Land � r = Barcellona Avenue v DAV!D A I o PHILIP Salem, MA e 'PCREFdZDn6 NO.38720 r r: °S A�FFS 0 Scale: 1" = 20' May, 2001 4.1 LoT 333 10T 360 Lo7 .331 I LOT 3Z $ SEE L .C. N //8OZE LI Log TZ7 � 329 yin � . N N 1 � � i - 1 I 40' �l j � P2 Posy p I f I MI I i I Zoning District: R - 1 R C�L L. ��✓� vG ' Assessor's Map 4 Lot 0029 �® Plot Plan of Land Barcellona Avenue ®AVID ALIP Salem, MA TRENZc,m Nu-."B720 r .ar r: Scale: 1" = 20' May, 2001 s�/ - w Cl] Y CF SALEM, MA CITY OF SALEM, MASSACHUSETTS CLERK'S OFFICE BOARD OF APPEAL 120 WASHINGTON STREET, 3RD FLOOR SALEM, MASSACHUSETTS 01970 ]00J[ MAR STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 1005 _2 A 10: 1iY� MAYOR FAX: 978-740-9846 DECISION ON THE PETPPION OF PATRICIA PITREAU REQUESTING AN ADMINISTRATIVE RULING FOR THE PROPERTY LOCATED AT 21 BARCELONA AVENUE R-I A hearing on this petition was held on February 16,2005 with the following Board Members present:Nina Cohen Chairman,Richard Dionne, Bonnie Belair,, Edward Moriarty and Nicholas Helides 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 ruling that lot 328 is a buildable lot for the property located at 21 Barcelona Avenue located in an R- 1 zone. The Board of Appeal,after careful consideration of the evidence and after reviewing the plans at the hearing,makes the following findings of fact: 1. Petitioner Patricia Pitreau of 18 Barcelona Ave., Salem filed a petition on February 4, 2005 seeking an administrative appeal of a decision of the Building Commissioner regarding the lot at 21 Barcelona Ave. The Property owner, Blanche Francullo,appeared at the hearing represented by John Keilty,Esq. of 40 Lowell Street in Peabody. 2. According to the petition,the decision from which she sought appeal was the ruling by the Building Commissioner€or the City of Salem that the property is a buidable lot although it is not sufficient in size to meet the current requirement relating to required square footage. Petitioner further states that the property meets no exceptions to the requirement under the zoning ordinance or by state statute. 3. Petitioner was joined in her petition by eleven resident property owners on Barcelona Avenue and Ravenna Street,and by Ward Councillor Leonard O'Leary,who is also a resident of Barcelona Street. 4. The followings facts are found by the Zoning Board. In May 2001 James Noble, a predecessor in interest, sought a variance to subdivide the property and variances from frontage and dimensional setbacks to construct a single family residence on the property. This petition was withdrawn without prejudice in October 2001. In June 2004, Mr. O'Leary sought a written opinion from the Building Inspector whether the property had merged for purposes of zoning law with an adjoining lot also owned by the Francullo family. Mr. St.Pierre,the Building Commissioner, stated that he determined that no merger had occurred, applying standard policy regarding merger doctrine as he understood such policy DECISION OF THE PETITION OF PATRICIA PITREAU REQUESTING AN ADMINISTRATICE APPEAL FOR THE PROPERTY LOCATED AT 21 BARCELONA AVENUE R-1 page two to be applied by the Building Department. On February 27, 2004,W. St. Pierre issued a letter stating the he had determined that the property was a buildable lot. On December 22,2005,the Building Commissioner issued a building permit to Mrs. Francullo based on a permit application and a set of plans,although the lot size was incorrectly given as 22,400 square feet on the permit application..Work commenced on lot clearing in January 2005. 5. At the g before the Ziowng Board,Mrs.Fanculle argued that the neighbor's appeal should be denied on the ground that they had an opportunity to appeal the granting of the building permit and failed to make a timely appeal pursuant to M.G.L.Chapter 40A, Section 7. 6. The neighbors said they believe that a building permit would not issue until the Board of Appeal held a hearing on the issue of whether the lot was buildable. This belied was based on the prior history of the property. They also argued that they did not have notice of the issuance of the building permit,although they were aware that the land was being cleared,and they did not know of the Building Commissioner's determination in February 2004 that the property was buildable. 7. The Zoning Board found that the appeal from the granting of the building permit was not timely,or in the alternative,that the determination by the Building Commissioner that the lot was not merged should stand. Therefore, base on the fact and on evidence presented,the Board make a motion to uphold Building Commissioners' Thomas St. Pierre decision for the property located at 21 Barcelona Avenue with a vote of 0 in favor and 5 to deny the petitioners appeal. ADMINISTRATIVE RULING DENIED February 16, 2005 n Nina Cohen, Chairman Board of Appeal A COPYOF THIS DECISION HAS BEEN FILED Wr'H 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 unit a copy of the decision bearing the.Certificate of the City Clerk that 20 days have elapsed an 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. 0 yrs CITY OF SALEM, MASSACHUSETTS BOARD OF APPEAL 9q� � 120 WASHINGTON STREET, 3RD FLOOR �C SALEM, MASSACHUSETTS 01970 STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 MAYOR FAX: 978-740-9846 MARCH 2, 2005 YOU ARE HEREBY NOTIFIED THAT AS OF MARCH 2, 2005 THE DECISION OF THE BOARD OF APPEAL HAS BEEN FILED IN THE OFFICE OF THE CITY CLERK TO DENY THE ADMINISTRATIVE APPEAL REQUESTED BY PATRICIA PITREAU FOR THE PROPERTY LOCATED AT 21 BARCELONA AVENUE LOCATED IN AN R-1 ZONE. ADMINISTRATIVE APPEAL DENIED MARCH 2, 2005 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 MGL 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 MGL Chapter 40A., Section 11, the Variance/Special Permit granted herein shall not take effect until a copy of the decision bearing the certification 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 the record or is recorded and noted on the owner's Certificate of title. Board of Appeal PETITIONER pa ll -- -.--�-��- - - ---- C ---------------- f � DATE LOCATION -- ------ "'- ----------------- ---- MOTION : TO GRAT SECOND TO DENY SECOND TO REHEAR SECOND WITHDRAW SECOND CONTINUE SECOND ---------------------------------- - _ - ------------- --------------------------------- - ROLL CALL Present Grant Den Amend Withdraw Continue Nina Cohen ------------------ ------ ------------------------------ Richard Dionne -------------_-_------------------------------------- - Bonnie Belair --"- -------------------------------------------------- -------- ------------------------------ Nicholas Helides - ----------------------------------------------------------r Edward Moriarty "--'--- -------------------------- ASSOCIATE MEMBERS ----------------------------------------------------------------------------------------------------------- CONDITIONS 04 Q a w a A� C � •M`.V+ .. .. .n —" —--------------- rr A JOHN R. KEILTY, COUNSELOR AT LAW 40 LOWELL STREET TELEPHONE (978) 531-7900 PEABODY, MA 01960 FACSIMILE (978) 531-2479 February 16, 2005 Board of Appeals City of Salem 120 Washington Street 3'd Floor Salem, MA 01970 Re: Petition of Patricia Pitreau Requesting Administrative Appeal of the Building Inspector's Ruling Ladies and Gentlemen: I represent Blanche Francullo of 19 Barcelona Avenue with regard to their interest in property located at 21 Barcelona Avenue, Salem, Massachusetts. I appear on behalf of Mrs. Francullo in order to provide information relative to the "alleged" Petition Requesting Administrative Appeal. Mrs. Francullo has owned the property in question since the early 1950's. In 1959, the Francullos built a home at 19 Barcelona Avenue which is Assessor's Map 8, Lot 3. In 1974, the Francullos conveyed property at 42 Ravenna Avenue, which is Assessors' Map 4, Lot 17, to their son Kevin Francullo who resides there. Currently, 21 Barcelona Avenue, Assessor's Map 4, Lot 29, is a vacant lot for which a building permit has issued. The building permit was issued on December 22, 2004 from which no timely appeal has been taken in accordance with State Statute. On January 25, a petition was presented to the Clerk of the Board of Appeals by a group of neighbors suggesting that the building permit issued for the property in question was erroneously issued. The State Statute and Law is clear with respect to matters such as this, and provides that parties requesting an enforcement of the zoning ordinance must request the same in writing after which the Building Inspector is provided with fourteen (14) days to respond to said request(MGL Ch. 40A, Sec. 7). R No formal demand pursuant to the provisions of M.G.L. Chapter 40A, Section 7 was ever made to the Building Inspector. Further, the provisions of M.G.L. Chapter 40A, Section 8 require that an appeal to the Zoning Board of Appeals may be made by ".....any person aggrieved by the enforcement action suggested by the Zoning Enforcement Officer". In the instant case, the petitioners have not made formal demand upon the Building Inspector, nor has the Building Inspector provided them a response in writing, nor have they sought to appear before the Board of Appeals in a timely fashion. The case of Neuhaus v. Building Inspector of Marlborough, 11 Mass.App.Ct. 230, 231 —235, 415 N.E.2d 235 (198 1) makes it clear that these provisions must be strictly adhered to and that the failure to adhere to these provisions is a fatal defect and places the issue erroneously before the Board of Appeals. My client's contention is that the Zoning Board of Appeals does not have jurisdiction over this matter and that it therefore must be dismissed as to being presented to the Board of Appeals. Very truly yours, Phns. Nea* John R. Keilty, Esquire JRK/emb 0 CITY OF SALEM, MASSACHUSETTS PUBLIC PROPERTY DEPARTMENT 120 WASHINGTON STREET, 3RD FLOOR SALEM, MASSACHUSETTS 01970 STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 EXT. 380 MAYOR FAX: 978-740-9846 December 15, 2004 COPY Steven Lovely, Esquire - - 14 Story Street Salem, Ma. 01970 RE: 21 Barcelona Street Dear Mr. Lovely: This Department received some complaints regarding my determination of 21 Barcelona Street as a grandfathered buildable lot. I have reviewed the history of 19,21 Barcelona and 42 Ravenna. At the time 42 Ravenna was constructed, it was a legal, nonconforming lot, 19 Barcelona exists today as a legal conforming lot. Therefore, 21 Barcelona has not merged with either 19 Barcelona or 42 Ravenna. Once again, it is my opinion that 21 Barcelona Avenue is a legal, grandfathered, nonconforming, buildable lot. Thank you for your p4lie>7fs in this matter. �5f;encs Sincerely, \ Thomas St. Pierre Building Commissioner cc: Kate Sullivan, Mayors Office Councillor O'Leary aCITY OF SALEMt MASSACHUSETTS m i PUBLIC PROPERTY DEPARTMENT 120 WASHINGTON STREET, 3RD FLOOR SALEM, MASSACHUSETTS 01970 STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 EXT. 380 MAYOR FAX: 978-740-9848 ------------February 27-2004- ----- --- — — --- -- ---- -- -- — -- — ---- I To Whom it May Concern RE: 21 Barcelona Avenue According to our records, it is determined that 21 Barcelona Avenue (Map 4) Lot 29 containing approximately 7493 square feet lot size and 53 feet of frontage, is a grandfathered buildable lot. Since ly, Thomas St. Pierre Acting Zoning Enforcement Officer CTPY OF SALEM, ASSiiCEVIL"M CITY OF SALEM M � CLERK'S OFFICE BOI m OF APPEAL 1{I�5 FEB -� .q 9; 5b �I i so zU BO D 0rXPrUU The Undersigned represent that he/she is/are the owners of a certain parcel of land located at. A Barcelona Avanua direst; Zoning District R-1 and add parcel isdbcftd by Section(a) of the Massachusetts Stab Building Code. Plans describing the work proposed have been submitted to the Inspector of Buildings in accordance with Section IX A.I of the Zoning Ordinance. _ Administrative Appeal from the decision of the Building Inspectors ruling on lot 328, 21 Barcelona Avenue is a buildable lot. The petionersland other allege that the lot is not sufficient in size to meet the current requirements of the Salem Zoning and Ordinances relating to the required square footage to build. Secondly the lot fails to meet}.any exception by the lot size provided by the Ordinance or by State statut The App>lofor permit wnu"a"by the f opecicr of 4WIdings for folta�whng reran (s): NoT f� L/'C 1-4 13 'L i i The undersigned hereby the Board of Appealawauld terms of the Salon zautng Orftinrmce or the Building Code and bnspector of&dtdings tothe appflcsbon fee a mild an the eMoroetnaad o1 By-I+awa and Building C nvolve praatidl tar unn hardship to the U and reset may be granted substantially daroga the lament and purpose of the Zoning and Banding Code fortis reasorm �1IOT191r4 C� {3 LC I I (Plf.IIBBPRW) Pe owner. t(tlotur i Addrw, Address; Tel No. Tel No. - - -- Date: _ I This crigind applinatlan must be Bled wi& the City Clerk. A certified copy of this petition will be returned to petidaw at the the of Sting with tis City Clark to than be filed with tine secretary of the Board of Appeal , four W0141101 Prlar to tis meeting of tin Board of Appeal, along with a check for a&wddng in the amount of tl ,made payable to*a 08alem Waning News`. 10 ATW I Q. C"CIS 16r fi9�/v� Oh to v 7— fJ o r wi e*o i. �V g(Lp $J9L fIZ GAS 76 . Cl taPIZ L' �L vNY� 1�J¢ %7F 75i/ 3'& SL 5Al a.rl U laa v 19-7o a Q�cwcel©na due �alevn niA -al0 L �+ 4 A ► 9 ? b lfei�e e- 39 3g 01970 9/78 - 3 0 t C:1 7 d3 �i1vcN/yi� �l/E 01970 q7R -7+4 mff 4' ..2 G �q rCe� yip �tve-- , (y7S-) 7VI-G�io G6, II i I i I Citp of 6arern, A1aq2;a0U.9;ett'q Office of the Cttp Council a Citp JW1 COUNCILLORS-AT-LARGE LEONARD F. O'LEARY WARD COUNCILLORS 2004 PRESIDENT 2004 THOMAS H. FUREY DEBORAH E. BURKINSHAW LUCY CORCHADO KEVIN R. HARVEY CITY CLERK MICHAEL SOSNOWSKI JOAN B. LOVELY JEAN M. PELLETIER ARTHUR C. SARGENT, 111 LEONARD F. O'LEARY MATTHEW A. VENO MICHAEL BENCAL JOSEPH A. O'KEEFE, SR. June 17, 2004 Mr. Thomas St. Pierre Building Inspector City of Salem Salem, MA 01970 Dear Mr. St. Pierre: It has been brought to my attention by a constituent that the lot at 21 Barcelona Avenue had previously merged with the adjacent lot map 4 lot 0017. It should also be noted the lot came before the Board of Appeal although it was withdrawn. Please investigate this matter and I request a reply to this matter. Very truly yours, LEONARD F. O'LEARY COUNCIL PRESIDENT & WARD 4 COUNCILLOR SALEM CITY HALL • 93 WASHINGTON STREET • SALEM, MA 01970-3592 0 WWW.SALEMCOUNCIL.COM